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Griffey v. Adams

United States District Court, W.D. Kentucky, Paducah Division

June 22, 2018



          Thomas B. Russell, Senior Judge.

         This matter comes before the Court upon three Motions. First, Defendant Lourdes Ambulatory Surgery Center, LLC, (“Lourdes”), has moved for partial summary judgment on Plaintiff Sherrie Griffey's, (“Griffey”), claim for punitive damages and willful/wanton negligence against it. [DN 29.] Second, Defendant William Adams, II, (“Adams”), has moved for partial summary judgment on Griffey's claims for punitive damages and willful/wanton negligence against him. [DN 45.] Third, Griffey has moved for partial summary judgment as to Lourdes's and Adams's, (collectively, “Defendants”), liability in this matter. [DN 43.] The merits of these motions are discussed below.

         A. Factual Background

         This case arises out of the doctor-patient relationship between Adams and Griffey. “Adams is a doctor of podiatric medicine who is board certified in foot surgery and reconstructive rearfoot and ankle surgery, ” and “has practiced at The Orthopaedic Institute of Western Kentucky since 2011.” [DN 1, at 1.] Griffey suffered from pain in her left foot, an ailment for which she sought treatment from Adams. [Id. at 1-2.] Throughout the course of their doctor-patient relationship, “Griffey had had previous treatments for her left foot paint with Adams including stretching, icing, shoe changes, inserts and two corticosteroid injections…, all with no improvement….” [Id. at 2.] Thereafter, on August 31, 2015, Adams instructed Griffey that she suffered from “chronic plantar fasciitis, left and large infracalcaneal heel spur, ” and discussed the option of surgical intervention with her. [Id.] Griffey decided to proceed with the surgery, which took place at Lourdes on September 15, 2015. [Id. at 2-3.] Adams conducted the surgery. [Id. at 3.]

         Griffey's pre-operation surgery order, electronically signed by Adams, provides “operative consent” concerning “plantar fascia release with heel spur resection-left foot.” [DN 44-3, at 1.] Likewise, Lourdes's consent form, signed by Griffey, authorized Adams to perform “the following operation or procedure: plantar fascia release with heel spur resection left foot.” [DN 44-4, at 1.] However, when Adams began the surgery at Lourdes at approximately 12:08 p.m., [DN 44-8, at 11 Day Dep., p. 16], “[a] tourniquet was placed about her right thigh.” [DN 44-5, at 1 (Lourdes Procedure Note) (emphasis added).] Then, “[a]n ankle block was performed on the right extremity, ” and “[t]he right lower extremely was then prepped and draped in usual sterile fashion.” [Id.] Thereafter, “[a] skin incision was started” on Griffey's right ankle, at which time the anesthesiologist present in the operating room “related that his chart said left [ankle.]” [Id.] “The nurse, [Dana Day, (“Day”)], again checked the cart, and the chart did say left, ” and so Adams stitched up Griffey's right foot and commenced the correct operation on Griffey's left foot. [Id. at 1-2.]

         In her Complaint, Griffey alleges that, as a result of the operation and the erroneous incision made by Adams into her right foot, she was rendered immobile, as “both her left and right feet had surgical wounds and weight bearing restrictions.” [DN 1, at 4.] She has lodged six claims against Adams and Lourdes: (1) negligence against Adams; (2) willful and wanton negligence against Adams; (3) battery against Adams; (4) negligence against Lourdes; (5) willful and wanton negligence against Lourdes; and (6) battery against Lourdes. [See generally id.]

         B. Summary Judgment Standard

         Rule 56 of the Federal Rules of Civil Procedure provides that “[t][he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.” Fed.R.Civ.P. 56(a). “In deciding a motion for summary judgment, the court must view the evidence and draw all reasonable inferences in favor of the nonmoving party.” Nat'l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). Moreover, “[t]he judge is not to ‘weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).

         “The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists.” Am. Guarantee and Liability Ins. Co. v. Norfolk S. Rwy. Co., 278 F.Supp.3d 1025, 1037 (E.D. Tenn. 2017) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The party seeking summary judgment “may discharge this burden either by producing evidence that demonstrates the absence of a genuine issue of material fact or simply ‘by showing-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case.'” Id. (quoting Celotex, 477 U.S. at 325). If the movant carries his or her burden here, “[t]he non-moving party…may not rest upon its mere allegations or denials of the adverse party's pleadings, but rather must set forth specific facts showing that there is a genuine issue for trial.” Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009) (citing Matsushita, 47 U.S. at 586). Finally, “[t]he mere existence of a scintilla of evidence in support of the non-moving party's position will be insufficient to defeat a motion for summary judgment; there must be evidence on which the jury could reasonably find for the non-moving party.” Id. (internal citations and brackets omitted). This means that “[i]f the [non-moving] party fails to make a sufficient showing on an[y] essential element of its case with respect to which it has the burden of proof, the moving party is entitled to summary judgment.” Am. Guarantee and Liability Ins. Co., 278 F.Supp.3d at 1037 (citing Celotex, 477 U.S. 323).

         C. Discussion

         1. Lourdes's Motion for Partial Summary Judgment

         The first motion at issue is Lourdes's motion for partial summary judgment on the issue of punitive damages. [DN 29.] It should be noted at the outset that Plaintiff, in her Response, argues that “punitive damages may be awarded when the evidence satisfies either the statutory standard of KRS 411.184(2), or the common law standard of gross negligence.” [DN 32, at 6.] “Pursuant to KRS 411.184(2), [1] punitive damages are available if a plaintiff proves by clear and convincing evidence that a defendant acted with fraud, oppression, or malice. In addition, the Kentucky Supreme Court has determined that notwithstanding the statute, punitive damages are still available if gross negligence is shown.” Turner v. Werner Enters., Inc., 442 F.Supp.2d 384, 385 (E.D. Ky. 2006) (citing Williams v. Wilson, 972 S.W.2d 260, 262-65 (Ky. 1998)). Thus, one method of securing punitive damages against a defendant would be to show that the defendant acted with (1) fraud, (2) oppression, or (3) gross negligence. While Plaintiff is technically correct in pointing out these legal standards, the fact remains that she is attempting to hold Lourdes vicariously liable for the actions of its employees and/or agents, and so this Court must look to vicarious liability principles in Kentucky law.

         When a plaintiff proceeds against an employer under the theory of vicarious liability, commonly referred to as respondeat superior, [2] courts applying Kentucky law look to KRS 411.184(3). “KRS 411.184(3) expressly prohibits the assessment of punitive damages against an employer for the conduct of an employee or agent, unless the offensive conduct was 1) authorized by the employer; 2) anticipated by the employer; or 3) ratified by the employer.” Saint Joseph Healthcare, Inc. v. Thomas, 487 S.W.3d 864, 873 (Ky. 2016) (citing Univ. Med. Ctr., Inc. v. Beglin, 375 S.W.3d 783, 793-94 (Ky. 2011)). In this case, the tortious acts complained of are negligence, willful/wanton negligence, and/or battery on the part of Lourdes's employees and/or agents. [See DN 1.]

         As Griffey is, in part, attempting to hold Lourdes vicariously liable for the conduct of various nurses, operating room staff, and Adams, KRS 411.184(3) controls this issue and so, in order to defeat Lourdes's instant motion, Griffey must present a genuine issue of material fact concerning one of authorization, anticipation, or ratification by Lourdes. See KRS 411.184(3). “Authorized” indicates that the employer gave “pre-approval of the conduct” in question. Beglin, 375 S.W.3d at 793. “[R]atification is, in effect, the after the fact approval of conduct, much as authorization is the before the fact approval of the conduct.” Id. at 794. “[R]atification may be implied by the conduct of the employer….” Thomas, 487 S.W.3d at 874. Importantly though, ratification requires both “1) an after-the-fact awareness of the conduct; and 2) an intent to ratify it.” Id. at 875 (citing Papa John's Int'l, Inc. v. McCoy,244 S.W.3d 44, 52-53 (Ky. 2008)). And with respect to the concept of anticipation, where the conduct at issue consists of “a gross deviation from well-established duties and policies” put in place to prevent a particular tortious act, an employer would not have been able to reasonably anticipate that tortious act. See Beglin, 375 S.W.3d at 794. However, with “anticipation, ” it is not necessary that the employer anticipate the exact manner in which an employee or agent commits a tortious act. Patterson v. Tommy Blair, Inc.,265 S.W.3d 241, 244 (Ky. Ct. App. 2007). But “Kentucky courts applying this statute have authorized punitive damages only when the employer was aware ...

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