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Richmond v. Hunt

Court of Appeals of Kentucky

April 5, 2019



          BRIEF AND ORAL ARGUMENT FOR APPELLANT: Ira Kilburn Salt Lick, Kentucky

          BRIEF FOR APPELLEES: Clayton Robinson Adam Havens Lexington, Kentucky Mark Nichols Carl Walter II Lexington, Kentucky ORAL ARGUMENT FOR APPELLEE DR. JASON HUNT & INTEGRITY ORTHOPAEDICS: Adam Havens Lexington, Kentucky ORAL ARGUMENT FOR APPELLEE DR. EDWARD MURDOCK: Carl Walter II Lexington, Kentucky



          COMBS, JUDGE

         In this medical malpractice action, Jake Richmond appeals from two separate summary judgments of the Montgomery Circuit Court entered in favor of Dr. Edward Murdock; Dr. Jason Hunt; and Dr. Hunt's partnership, Integrity Orthopaedics Sports Medicine and Rehabilitation, PLLC. The circuit court concluded that Murdock, Hunt, and Dr. Hunt's practice group were entitled to judgment because Richmond could not establish proximate cause at trial. After our review, we vacate and remand.

         A few minutes after 8:00 p.m., on Monday, December 24, 2012, Richmond was taken to the emergency department at St. Joseph Hospital in Mt. Sterling. He was examined by a nurse and a physician's assistant (P.A.), Emily Krimm. P.A. Krimm was working under the supervision of Dr. Edward Murdock, who practices emergency medicine. Richmond complained of pain in his left elbow and down his forearm to his fingertips; the pain had begun on the previous Saturday night (December 22, 2012) when he felt a pop in his left arm as he was removing his vest. He reported having trouble rotating his forearm.

         In his medical history, Richmond told the triage nurse that he had previously suffered with deep vein thrombosis in his leg. However, he had no history of an arterial blood clot. The nurse noted a "faint [radial] pulse" in the left arm and concluded that this was likely Richmond's baseline because of his age and tobacco usage. She observed that his capillary refill was normal.

         Upon her examination, P.A. Krimm noted swelling and diffuse bruising in Richmond's left hand, wrist, forearm, and elbow. She observed tenderness at his wrist, forearm, and elbow. She also observed that sensation in the arm was intact (indicating no tingling or numbness), but she noted that Richmond was unable to extend his fingers due to pain. She observed no vascular compromise, pallor, cool skin, or abnormal capillary refill. His tendon function and pulse were normal. The clinical impression of P.A. Krimm was that Richmond had torn a muscle, but nonetheless she recommended an ultrasound.

         After some discussion with P.A. Krimm, Dr. Murdock decided that an ultrasound to confirm a muscle tear was unwarranted. He cancelled her order for the ultrasound without ever seeing or examining Richmond. P.A. Krimm wrapped Richmond's left arm and placed it in a shoulder sling. Again, his pulse was taken, and his neurovascular system appeared intact. Richmond reported that his pain had eased. He was instructed to return to the hospital if his symptoms worsened, if his pain increased, or if he had any further concerns. He was discharged with instructions to see Dr. Hunt at Integrity Orthopaedics in two or three days.

         On Friday, December 28, 2012 (six days after his arm pain began, and four days after he was seen in the emergency department), Richmond saw Dr. Hunt, a hand surgeon, at Integrity Orthopaedics. Dr. Hunt obtained a medical history and examined Richmond. He noted normal radial and ulnar artery pulses but observed some diffuse swelling and tenderness in Richmond's forearm. Dr. Hunt measured Richmond's grip strength at 3 on a scale of 1 to 5. He felt that Richmond had likely ruptured the tendon in his forearm, and he ordered an MRI to confirm the diagnosis.

         Richmond presented to St. Joseph Hospital in Mt. Sterling on Wednesday, January 2, 2013 (five days after the imaging was ordered), for the MRI. However, by this time he was not able to undergo the MRI. Richmond reported to radiology staff that his hand hurt so badly that he could not position it properly for the imaging. In the normal course of practice, Dr. Hunt would not have been made aware of Richmond's inability to undergo the MRI.

         On Wednesday, January 9, 2013, more than two weeks after his initial visit to the emergency department at St. Joseph Hospital, Richmond returned to St. Joseph. His hand was swollen and bluish to pale in color. Dr. Ronald Hamilton examined Richmond. He believed that Richmond might be suffering with compartment syndrome -- diffuse swelling resulting in abnormal pressure and dangerously decreased blood flow. Dr. Hamilton ordered that Richmond be transferred to the University of Kentucky Medical Center for further care.

         At the University of Kentucky, Richmond was diagnosed with acute limb ischemia. Surgeons tried to restore adequate circulation to Richmond's hand by performing a thromboembolectomy -- a surgical removal of the blood clot. That procedure was unsuccessful. Ultimately, all of the fingers and most of Richmond's left hand were amputated, leaving only his thumb. He also lost part of his forearm.

         On December 20, 2013, Richmond filed this medical malpractice action against Dr. Murdock, Dr. Hunt, Integrity Orthopaedics, and others. Richmond contended that the failure of Murdock and/or Hunt to timely diagnose the blood clot deprived him of the opportunity to receive treatment that would have saved his hand. The doctors answered the complaint and denied any negligence. A period of discovery began.

         Pursuant to the circuit court's order, Richmond was required to make his expert witness disclosure by February 1, 2016. However, he failed to meet this deadline, and Dr. Hunt and others filed motions for summary judgment. Subsequently, Richmond identified Dr. Paul Kearney, a general surgeon, as his medical expert for trial.

         Following Dr. Kearney's deposition in January 2017, Dr. Murdock, Dr. Hunt, and Integrity Orthopedics moved again for summary judgment. In part, they argued that Richmond could not prove causation at trial. They contended that Dr. Kearney could state only that Richmond might have had a different outcome had he been properly diagnosed on December 24, arguing that Richmond thus fell short of the standard required to show negligence. Since Richmond could not make a prima facie case of negligence, they claimed that they were entitled to judgment as a matter of law.

         In separate orders entered in November 2017, the Montgomery Circuit Court granted summary judgment in favor of the appellees. Although the court acknowledged that genuine issues of material fact existed as to the doctors' deviation from the standard of care, it nonetheless granted their motions for summary judgment based on causation alone - namely, that causation could not be established with certainty as a result of the testimony of Richmond's medical expert.

         Richmond filed a motion to alter, amend, or vacate the summary judgments. Attached to his motion was Dr. Kearney's affidavit stating his opinion with a "high degree of medical probability" that if Dr. Murdock and/or Dr. Hunt had made a correct and timely diagnosis of limb ischemia, all or nearly all of Richmond's hand would have been salvaged. The motion was denied. This appeal followed.

         Upon our review of a grant of summary judgment, we must determine "whether the trial court correctly found that there were no genuine issues as to any material fact and the moving party was entitled to judgment as a matter of law." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996); CR 56.03. Because summary judgment involves only legal questions and factual findings are not at issue, "an appellate court need not defer to the trial court's decision and will review the issue de novo." Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001).

         Causation is a necessary element of proof in any negligence case. Johnson v. Vaughn, 370 S.W.2d 591 (Ky. 1963). While proof of injury may be demonstrated -- at least in part -- by medical records or even by lay testimony, proof of a causal link between a physician's breach of a standard of care and a patient's injury (causation) must be established by means of expert testimony. Andrew v. Begley, 203 S.W.3d 165, 170 (Ky. App. 2006) (explaining that a "plaintiff in a medical negligence case is required to present expert testimony that establishes . . . the alleged negligence proximately caused the injury"). The medical testimony must indicate that an alleged negligent act probably caused the injury and that a nexus between the alleged act and the injury is not merely a speculative possibility. Jarboe v. Harting, 397 S.W.2d 775 (Ky. 1965); Jackson v. Ghayoumi, 419 S.W.3d 40 (Ky. App. 2012); Brown-Forman Corp. v. Upchurch, 127 S.W.3d 615 (Ky. 2004); Turner v. Commonwealth, 5 S.W.3d 119 (Ky. 1999)(Medical causation must be proved to a reasonable medical probability).

         However, while evidence of causation must be in terms of probability rather than mere possibility, the Kentucky Supreme Court has held that substance should prevail over form and that the total meaning -- rather than a word-by-word construction -- should be the focus of the inquiry. Walden v. Jones, 439 S.W.2d 571 (Ky. 1968); Morris v. Hoffman, 551 S.W.2d 8 (Ky. App. 1977).

         With these standards in mind, we examine the deposition testimony of Dr. Kearney, Richmond's medical expert, and the report that he prepared before his deposition. Upon examination by Dr. Hunt's counsel and in response to a question regarding a timeline for an effective diagnosis and treatment of an acutely ischemic limb, Dr. Kearney said: "- my point about this is the faster you get to it, the more likely you are to achieve any kind of limb salvage, and then at some point it's completely irretrievable and you lose the limb completely." When asked at what point a hand might be regarded as unsalvageable, he answered: "- well, I think your best crack at him would have been in those first 48 to 72 hours if you were going to salvage that limb." He testified that by the time that Richmond saw Dr. Hunt, "occlusion of his radial artery was complete. I think he was living on collaterals. He was living on a very small number of collaterals, and they were enough to barely keep things alive. . . ." Later in his testimony, however, ...

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