United States District Court, E.D. Kentucky, Southern Division, London
GEOFFREY CARR, as Guardian of the Estate of Joseph Carr PLAINTIFF
LAKE CUMBERLAND REGIONAL HOSPITAL, et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER
L. BUNNING UNITED STATES DISTRICT JUDGE
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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 ¶
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.
result, Plaintiff filed the instant action on July 9, 2015,
in the Pulaski County Circuit Court. Id.at 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).
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). 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).
Standards of Review
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)).
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).
Plaintiff's negligent-credentialing claim will not be
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. (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).
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)).
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 ...