FROM MONTGOMERY CIRCUIT COURT HONORABLE WILLIAM EVANS LANE,
JUDGE ACTION NO. 13-CI-90274
AND ORAL ARGUMENT FOR APPELLANT: Ira Kilburn Salt Lick,
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,
BEFORE: ACREE, COMBS, AND MAZE, JUDGES.
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.
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.
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.
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
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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
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).
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,