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Carr v. Lake Cumberland Regional Hospital

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

October 31, 2017

GEOFFREY CARR, as Guardian of the Estate of Joseph Carr PLAINTIFF




         This is a medical-negligence action brought by Plaintiff Geoffrey Carr, as the Guardian of the Estate of the incompetent Joseph Carr, against the doctor-Doctor John Husted-who performed Joseph's bariatric surgery, and the hospital where the bariatric surgery was performed-Lake Cumberland Regional Hospital (“Hospital”). This matter is currently before the Court on three motions: (1) the Hospital's Motion for Judgment on the Pleadings; (2) the Hospital's Motion for Partial Summary Judgment; and (3) Plaintiff's unopposed Motion to Supplement his Response to the Hospital's Motion for Partial Summary Judgment.


         On April 24, 2009, Doctor Husted performed bariatric surgery on Plaintiff at the Commonwealth Bariatric Center in Pulaski County, Kentucky. (Doc. # 1-3 at ¶¶ 9, 34). Commonwealth Bariatric Center is a business operated by the Hospital. Id. at ¶ 9.

         After the surgery, Plaintiff allegedly began experiencing respiratory problems, which his primary care physicians believed to be allergies. Id. at ¶ 65. However, Plaintiff asserts that on or around July 10, 2014, he discovered that he had been aspirating food into his lungs, possibly as a result of the bariatric surgery. Id. at ¶ 66-67. On or about March 19, 2015, Plaintiff underwent revision surgery, at which point Plaintiff allegedly learned that Doctor Husted had “performed a surgery that appeared incomplete and had left [Plaintiff] with permanent revisions of his anatomy not recognizable as any approved bariatric surgery.” Id. at ¶ 68.

         Plaintiff alleges that without his consent, Doctor Husted performed an “unrecognized, unaccepted, and experimental procedure” on him. Id. at ¶¶ 34-35. Plaintiff alleges that Doctor Husted did not have the privileges to perform the surgery as it was performed. Id. at ¶ 38. According to Plaintiff, before his surgery, the Hospital was or should have been on notice of numerous concerns over the results of surgeries that Doctor Husted had performed. Id. at ¶ 40.

         As a result, Plaintiff filed the instant action on July 9, 2015, in the Pulaski County Circuit Court. 5. Plaintiff's complaint asserted eleven causes of action against Doctor Husted and the Hospital. Id. at 17-27. The Hospital removed this case from the Pulaski County Circuit Court on July 31, 2015, with Doctor Husted's consent, based on diversity jurisdiction. (Docs. # 1 and 5).

         In the instant motions, the Hospital seeks dismissal of Plaintiff's negligent credentialing claim and negligence-per-se claims (Doc. # 100). The Hospital has also moved for summary judgment on Count Five, Plaintiff's claims of negligent training and negligent supervision. (Doc. # 112).[1] The Motion for Judgment on the Pleadings is fully briefed (Docs. # 128 and 142), as is the Motion for Summary Judgment. (Docs. # 126 and 147).

         III. ANALYSIS

         A. Standards of Review

         The Court reviews motions for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) under a standard nearly identical to that employed when the Court considers a Rule 12(b)(6) motion to dismiss for failure to state a claim. Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 295 (6th Cir. 2008). Both motions require a court to construe the complaint in the light most favorable to the plaintiff and to accept all of the complaint's factual allegations as true. Penny/Olhmann/Nieman, Inc. v. Miami Valley Pension Corp., 399 F.3d 692, 697 (6th Cir. 2005). This Court need not, however, “accept as true legal conclusions or unwarranted factual inferences.” Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir. 1999). “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.'” Tucker v. Middleburg-Legacy Place, L.L.C., 539 F.3d 545, 549 (6th Cir. 2008) (quoting JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 582 (6th Cir. 2007)).

         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). The moving party has the initial burden of “showing the absence of any genuine issues of material fact.” Sigler v. Am. Honda Motor Co., 532 F.3d 469, 483 (6th Cir. 2008). Once the moving party has met its burden, the nonmoving party must cite to evidence in the record upon which “a reasonable jury could return a verdict” in its favor; a mere “scintilla of evidence” will not do. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-52 (1986). At the summary-judgment stage, a court “views the evidence in the light most favorable to the nonmoving party and draws all reasonable inferences in that party's favor.” Slusher v. Carson, 540 F.3d 449, 453 (6th Cir. 2008).

         B. Plaintiff's negligent-credentialing claim will not be dismissed.

         In its Motion for Judgment on the Pleadings, the Hospital claims that Counts Two and Five must be dismissed because Kentucky does not recognize the tort of negligent credentialing.[2] (Doc. # 100-1). The Kentucky Supreme Court has not yet directly addressed this question; therefore, this Court must make “the best prediction … of what the Kentucky Supreme Court would do if confronted with [the] question.” Combs v. Int'l Ins. Co., 354 F.3d 568, 578 (6th Cir. 2004) (internal citations omitted).

         The Sixth Circuit has warned that federal courts sitting in diversity “should be extremely cautious about adopting ‘substantive innovation' in state law.” Id. at 578 (internal citations omitted). “[W]here a state appellate court has resolved an issue to which the high court has not spoken” the Court treats that resolution as “authoritative absent a strong showing that the state's highest court would decide the issue differently.” Id. (citing Kirk v. Hanes, 16 F.3d 705, 707 (6th Cir. 1994); Garrett v. Akron-Cleveland Auto Rental, Inc., 921 F.2d 659, 662 (6th Cir. 1990)).

         The tort of negligent credentialing is unsettled in Kentucky. In 2011, the Kentucky Court of Appeals reversed and remanded a Hopkins County Circuit Court decision for two reasons, finding both evidentiary error and error in the lower court's determination that the tort of negligent credentialing was not viable in Kentucky. Estate of Burton v. Trover, No. 2009-CA-1595 (Ky. Ct. App. June 10, 2011). The Court of Appeals opined that “it is proper for this Court to now recognize the tort of negligent credentialing in Kentucky.” Id. at 5. On appeal from this decision, the Kentucky Supreme Court vacated the Court of Appeals' decision on the evidentiary error, and explicitly declined to either reverse or affirm the recognition of the tort of negligent credentialing. Trover v. Estate of Burton, 423 S.W.3d 165, 167-68 (Ky. 2014) (“As it happens, our review convinces us that the trial court's evidentiary ruling ...

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