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Ashland Hospital Corp. v. Lewis

Supreme Court of Kentucky

August 29, 2019

ASHLAND HOSPITAL CORPORATION D/B/A KING'S DAUGHTERS MEDICAL CENTER APPELLANT
v.
PAUL WESLEY LEWIS, M.D. AND DAVID SHACKELFORD APPELLEES AND PAUL WESLEY LEWIS, M.D. APPELLANT
v.
DAVID SHACKELFORD; AND ASHLAND HOSPITAL CORPORATION D/B/A KING'S DAUGHTERS MEDICAL CENTER APPELLEES

          ON 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, LLP

          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

          OPINION

          KELLER JUSTICE

          The 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.

         I. BACKGROUND

         In 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."

         Later, while in the post-op recovery room, Shackelford reported a frontal headache and scotoma, or spots in his field of vision.[1] The aforementioned symptoms may indicate a stroke but are also not uncommon after an angiogram.[2] 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.[3] Later, after hearing that the patient was feeling okay, Dr. Lewis discharged Shackelford, who then left KDMC at approximately 7:30 P.M.

         Shackelford 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.

         Shackelford 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, [4] 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."

         Based 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.

         After 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 Shackelford's ...


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