ASHLAND HOSPITAL CORPORATION D/B/A KING'S DAUGHTERS MEDICAL CENTER APPELLANT
PAUL WESLEY LEWIS, M.D. AND DAVID SHACKELFORD APPELLEES AND PAUL WESLEY LEWIS, M.D. APPELLANT
DAVID SHACKELFORD; AND ASHLAND HOSPITAL CORPORATION D/B/A KING'S DAUGHTERS MEDICAL CENTER APPELLEES
REVIEW FROM COURT OF APPEALS CASE NO. 2015-CA-001750-MR BOYD
CIRCUIT COURT NO. 11-CI-01223
COUNSEL FOR ASHLAND HOSPITAL CORPORATION D/B/A KING'S
DAUGHTERS MEDICAL CENTER: William Mitchell Hall, Jr. Keri E.
Hieneman Alexis Orlando Gonzalez-Lopez VanAntwerp Attorneys,
COUNSEL FOR PAUL WESLEY LEWIS, M.D.: Kenneth Williams, Jr.
David Frederick Latherow Geoffrey D. Marsh Williams, Hall
& Latherow, LLP
COUNSEL FOR APPELLEE, DAVID SHACKELFORD: Anthony David
Blankenship Kinner & Patton
COUNSEL FOR AMICUS CURIAE, KENTUCKY DEFENSE COUNSEL, INC.:
Melissa Thompson Richardson Elizabeth Bass Laura Katharine
Haagen Walters Meadows Richardson PLLC
COUNSEL FOR AMICUS CURIAE, AMERICAN MEDICAL ASSOCIATION AND
KENTUCKY MEDICAL ASSOCIATION: Bethany A. Breetz Sarah
Spurlock Stites 8s Harbison, PLLC Phillip Seth Goldberg Cary
Silverman Shook, Hardy 85 Bacon, LLP
Boyd Circuit Court granted summary judgment in favor of Dr.
Paul Wesley Lewis and Ashland Hospital Corporation d/b/a
King's Daughters Medical Center ("KDMC") after
finding that the complainant, David Shackelford, could not
establish a prima facie case of negligence. More
specifically, the trial court found that the proffered expert
testimony failed to establish that any negligence on the part
of the doctor or hospital was a substantial factor in causing
injury to Shackelford. The Court of Appeals reversed, finding
that expert testimony was not required to establish causation
in this case. Dr. Lewis and KDMC then sought discretionary
review, which this Court granted. Having reviewed the record
and the applicable law, we now reverse the holding of the
Court of Appeals and reinstate the Boyd Circuit Court's
summary judgment order.
2010, Shackelford's rheumatologist referred him to Dr.
Lewis, an interventional radiologist, for a four-vessel
cerebral angiogram to assist with diagnosing the cause of
Shackelford's chronic headaches. Dr. Lewis performed the
angiogram at KDMC on December 20, 2010. No complications
arose during the procedure. Dr. Lewis then conducted a
post-procedure assessment but did not note any concerns.
Rather, Dr. Lewis noted, Shackelford "was normal
conversant, no problems, no complaints, no weakness, no
visual field changes."
while in the post-op recovery room, Shackelford reported a
frontal headache and scotoma, or spots in his field of
vision. The aforementioned symptoms may indicate a
stroke but are also not uncommon after an
angiogram. A nurse reported these conditions to Dr.
Lewis, who was performing another medical procedure at the
time. He asked if any other problems had arisen, such as
weakness, but the nurse reported that the spots were the only
issue at that time. Dr. Lewis instructed the nurse to keep
him informed of any changes. Later, after calling to check on
Shackelford, Dr. Lewis was told that the scotoma had
resolved, but Shackelford now had a headache. According to
Dr. Lewis, he had no other visual changes, weakness, slurred
speech, or facial palsies. Given Shackelford's history of
headaches and the possibility that the angiogram triggered a
migraine, Dr. Lewis prescribed pain medication. When nursing
staff called Dr. Lewis later in the evening, they reported
that the headache had improved. Later, after hearing that the
patient was feeling okay, Dr. Lewis discharged Shackelford,
who then left KDMC at approximately 7:30 P.M.
returned to KDMC the next morning via ambulance after
becoming disoriented at his home. A CT scan was performed
which appeared normal. An MRI was also performed which
indicated multiple small infarcts scattered bilaterally or,
in other words, signs of a recent stroke. Shackelford was
then admitted to KDMC, where he was treated by a neurologist.
He was discharged two days later. Though his condition has
improved, he claims to have continuing short term memory loss
and visual problems.
initiated the underlying medical malpractice suit in Boyd
Circuit Court. There is no allegation that the stroke itself
was caused by negligence; rather, Shackelford alleges that
the failure to examine and diagnose the stroke after the
angiogram was negligent and caused injury greater than that
which the stroke would have caused with earlier intervention.
To support his claims, Shackelford identified one expert, Dr.
Michael David Khoury, a vascular surgeon. During his
discovery deposition,  Dr. Khoury criticized Dr. Lewis's
failure to examine Shackelford when his symptoms were
consistent with a stroke. However, Dr. Khoury did not opine
that Dr. Lewis could have limited the effects of the stroke
through earlier intervention. When asked specifically whether
he could state within a reasonable degree of medical
probability that Dr. Lewis's post-procedure care was a
substantial factor in causing harm to Shackelford, Dr. Khoury
responded that it was "impossible to tell."
largely upon Dr. Khoury's deposition testimony, Dr. Lewis
and KDMC moved for summary judgment on the basis that the
expert had failed to opine that the alleged negligence caused
any injury to Shackelford, and, as a result, Shackelford
could not prove an essential element of his medical
malpractice claim. In response, the Boyd Circuit Court
allowed Shackelford additional time to depose the defense
experts, Drs. Peter J. Pema and Gregory Postal, both
neuroradiologists. In his deposition, Dr. Pema acknowledged
the general proposition that strokes require timely diagnosis
and treatment but did not provide an opinion on causation
under the specific facts of this case. Dr. Postal, on the
other hand, opined that Shackelford began to present symptoms
of a stroke after leaving the hospital.
completion of the defense experts' depositions, the trial
court entered an order granting KDMC's and Dr.
Lewis's motions for summary judgment. That court
acknowledged that Shackelford "elicited general
testimony that strokes cause damage, that recognition of
strokes needs to take place quickly, that treatment needs to
be implemented quickly, and that damage can continue to occur
following a stroke." However, the experts could not
state with reasonable probability that, under the specific
facts and circumstances of this case, the defendants'
alleged negligence was a substantial factor in causing