RENDERED: FEBRUARY 4, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-0120-MR

PATSY ANN HIGGINS APPELLANT

APPEAL FROM LIVINGSTON CIRCUIT COURT

v. HONORABLE CLARENCE A. WOODALL, III, JUDGE

ACTION NO. 17-CI-00006

DR. WILLIAM BARNES; DR. DEMETRIUS 

PATTON; AND TRI-RIVERS HEALTHCARE, PPLC APPELLEES

OPINION

AFFIRMING

**   **  **

BEFORE: ACREE, GOODWINE, AND L. THOMPSON, JUDGES.

THOMPSON, L., JUDGE: Patsy Ann Higgins (“Appellant”) appeals from a jury 

verdict rendered in Livingston Circuit Court in favor of Dr. William Barnes and 

Dr. Demetrius Patton. Appellant argues that the circuit court erred in granting a 

directed verdict and dismissing her informed consent claim; in refusing to instruct 

the jury on subsequent malpractice; failing to grant a mistrial after defense counsel 
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improperly asked her about pension and disability benefits in the presence of the 

jury; in improperly limiting certain expert testimony; in denying her an opportunity 

to correct a mistake in testimony; in improperly denying her motion for a change 

of venue; and in prohibiting her counsel from discussing the burden of proof. She 

seeks an opinion and order reversing the judgment on appeal and ordering a new 

trial. For the reasons addressed below, we find no error and affirm the judgment 

on appeal.

FACTS AND PROCEDURAL HISTORY

Appellant has suffered from recurrent diverticulitis for much of her 

adult life, resulting in three colon resection surgical procedures to remove diseased 

portions of her bowel. The first of these surgeries was performed in 2004, which 

resulted in Appellant being hospitalized after release. In 2012, Appellant suffered 

an acute flareup of her disease with bowel blockage resulting in her second 

colectomy, which again resulted in several post-surgical hospitalizations prior to 

full recovery. Appellant also received a surgical hernia repair in 2014.

Appellant was hospitalized in late 2015 with recurrent symptoms of 

diverticulitis, which resulted in Dr. Barnes discussing with her the possibility of 

laparoscopic surgery to remove another portion of her colon. On January 26, 2016, 

Dr. Barnes and Dr. Patton performed a laparoscopic colectomy on Appellant at 

Livingston County Hospital to remove a diseased portion of her colon. Prior to 
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surgery, Dr. Barnes discussed risks of surgery with Appellant including the 

possibility of infection, cardiac arrest, pneumonia, and blood clots. Dr. Barnes told 

Appellant that, if required, he would convert the laparoscopic procedure to an open 

surgical procedure. Dr. Patton also spoke with Appellant about the procedure and 

risks. After fully discussing the matter, Appellant and Dr. Barnes each signed a 

consent form.

Appellant underwent the laparoscopic colectomy on January 26, 2016. 

In the first few days after surgery, Appellant suffered significant pain consistent 

with the procedure, which, according to Dr. Barnes, made her reluctant to become 

ambulatory. Approximately 13 days after surgery, Appellant developed 

pneumonia which was confirmed by bronchoscopy. The infection spread, her 

condition worsened, and she developed a systemic infection. 

On January 31, 2016, and February 1, 2016, Appellant’s condition 

worsened and she was placed on a ventilator. While intubated and sedated, 

Appellant pulled out her intubation tube and suffered cardiopulmonary arrest from 

which she was resuscitated. Dr. Barnes then transferred Appellant to Lourdes 

Hospital for more specialized care.

At Lourdes Hospital, Dr. David Mauterer undertook Appellant’s care. 

A CT scan conducted on February 3, 2016, showed a retroperitoneal abscess. Dr. 

Mauterer performed an exploratory surgical procedure on Appellant that day to 
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address the abscess and investigate its possible cause. While Dr. Mauterer 

surmised that Appellant may have had a perforation in her colon, he did not find 

one. Thereafter, Appellant had a protracted hospitalization and treatment with 

antibiotics to address the infection. 

Appellant eventually recovered and was released from Lourdes 

Hospital. Thereafter, she filed the instant medical negligence action in Livingston 

Circuit Court against Drs. Barnes and Patton; their practice group Tri-Rivers 

Healthcare, PPLC (collectively “Appellees”); and Livingston County Hospital. 

She alleged that the operation caused her to sustain permanent injury causing 

significant disability which left her unable to continue working as a heavy 

equipment operator. The hospital settled with Appellant and the matter proceeded 

to a jury trial on the claims against Drs. Barnes and Patton and Tri-Rivers 

Healthcare. The focus of her claim was that Drs. Barnes and Patton injured her 

bowel and failed to provide a sufficient level of diagnostic care and treatment in 

the days following surgery which resulted in lasting injuries and disability. 

The matter proceeded to trial over the course of several days. 

Seventeen witnesses testified and 22 exhibits were entered into the record. At the 

conclusion of the proceeding, the circuit court rendered a directed verdict in favor 

of Appellees on Appellant’s informed consent claim. The court determined that 

Appellant had not demonstrated that, but for a lack of informed consent, she would 
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not have consented to the procedure. The matter went before the jury on all 

remaining issues. The jury returned a verdict in favor of the Appellees and this 

appeal followed.

ARGUMENTS AND ANALYSIS

Appellant raises several arguments in support of her contention that 

the judgment on appeal should be reversed, and that she is entitled to a new trial. 

She first argues that the Livingston Circuit Court committed reversible error in

granting a directed verdict in favor of Drs. Barnes and Patton on her claim of 

negligence resulting from a failure to obtain informed consent. Appellant testified 

at trial regarding the information that Drs. Barnes and Patton communicated to her 

about her surgery, and the conditions under which they would transition from a 

laparoscopic surgery to an open surgery. The parties agree that Drs. Barnes and 

Patton told Appellant that they would transition from a laparoscopic surgery to an 

open surgery if they encountered a substantial amount of scar tissue and adhesions 

justifying the change. Appellant testified that she consented to the laparoscopic 

surgery only on the conditions presented by the doctors, because laparoscopy was 

more likely than open surgery to cause bowel injury when scarring and adhesions 

were present. The doctors testified that they encountered extensive scarring, but 

chose to continue with the laparoscopic procedure rather than open surgery. The 

focus of Appellant’s argument on this issue is that she would not have consented to 
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the surgery had she known that the doctors would have continued with 

laparoscopic, rather than open surgery, after encountering extensive scarring and 

adhesions.

A claim of lack of informed consent is a negligence claim with the 

duty defined by statute. Kentucky Revised Statutes (“KRS”) 304.40-320. 

In any action brought for treating, examining, or 

operating on a claimant wherein the claimant’s informed 

consent is an element, the claimant’s informed consent 

shall be deemed to have been given where:

(1) The action of the health care provider in 

obtaining the consent of the patient or another 

person authorized to give consent for the patient 

was in accordance with the accepted standard of 

medical or dental practice among members of the 

profession with similar training and experience; 

and

(2) A reasonable individual, from the information 

provided by the health care provider under the 

circumstances, would have a general 

understanding of the procedure and medically or 

dentally acceptable alternative procedures or 

treatments and substantial risks and hazards 

inherent in the proposed treatment or procedures 

which are recognized among other health care 

providers who perform similar treatments or 

procedures[.]

Id. “[P]hysicians have a general duty to disclose to their patients in accordance 

with accepted medical standards the risks and benefits of the treatment to be 

performed.” University Medical Center, Inc. v. Shwab, 628 S.W.3d 112, 121 (Ky. 
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2021) (internal quotation marks and citation omitted).

1

 “A physician must comply 

with both subsections [of KRS 304.40-320] in order to satisfy the statutory 

standard for obtaining informed consent.” Id. (citation omitted). In order to meet 

the requirements of the first subsection, a plaintiff “must show that the process by 

which the medical defendants obtained her consent did not comply with ‘accepted 

standards’ within the medical profession.” Id. Subsection 2 addresses the content 

of the information provided, in that a reasonable individual must have a general 

understanding of the risks recognized among healthcare providers who perform 

similar treatments. Id. at 127. 

The circuit court granted Appellees’ motion for a directed verdict 

upon finding that Appellant did not prove causation on her informed consent claim. 

Specifically, the court determined that Appellant did not demonstrate that, but for 

the alleged lack of information provided to her, she would not have consented to 

the procedure. We find no error in this conclusion. As part of the consent process, 

Appellant was advised that her surgeons retained the option of converting the 

laparoscopic procedure to an open procedure if the circumstances warranted. 

Though they encountered significant scarring, which the record demonstrates was 

 

1

Shwab overruled that portion of Sargent v. Shaffer, 467 S.W.3d 198 (Ky. 2015), which held 

that the substantiality of a risk inherent in a proposed treatment can be proven by lay testimony. 

Shwab now requires expert testimony.
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not unexpected given the number of prior surgeries performed on Appellant, the 

surgeons continued with and completed the laparoscopy. 

A trial court may grant a directed verdict only if 

the evidence is insufficient to sustain a verdict. It cannot 

direct a verdict unless there is a complete absence of 

proof on a material issue or if no disputed issues of fact 

exist upon which reasonable minds could differ. A 

motion for directed verdict admits the truth of all 

evidence which is favorable to the party against whom 

the motion is made. 

And in ruling on the motion, the trial court must 

draw all fair and rational inferences from the evidence in 

favor of the party opposing the motion. Whenever there 

is conflicting proof, the court must reserve to the jury the 

determination and resolution of such conflicts. And the 

judge may not consider the credibility or weight of the 

evidence, the evaluation of which being solely a function 

of the fact-finding jury.

Asbury University v. Powell, 486 S.W.3d 246, 257 (Ky. 2016) (internal quotation

marks and citations omitted). See Kentucky Rules of Civil Procedure (“CR”) 

50.01.

The Livingston Circuit Court correctly determined that the evidence 

on Appellant’s informed consent claim was insufficient to sustain a verdict. We 

find no error on this issue.

Appellant next argues that the Livingston Circuit Court erred when it 

failed to give a jury instruction on subsequent malpractice. At the close of the 

proceeding, Appellant requested that the circuit court instruct the jury that the 
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alleged malpractice of her subsequent medical provider, Dr. Mauterer, should not 

be considered in determining the liability of Drs. Barnes and Patton. Citing City of 

Covington v. Keal, 280 Ky. 237, 133 S.W.2d 49 (1939), Wimsatt v. Haydon Oil

Company, 414 S.W.2d 908 (Ky. 1967), and the RESTATEMENT (SECOND) OF TORTS

Section 457, Appellant asked the circuit court to admonish the jury not to consider 

subsequent malpractice and that Drs. Barnes and Patton be prohibited from 

referencing subsequent malpractice in their closing arguments. Appellees 

responded that under Sakler v. Anesthesiology Associates, P.S.C., 50 S.W.3d 210 

(Ky. App. 2001), they were permitted to introduce rebuttal evidence on the issue. 

The circuit court agreed with Drs. Barnes and Patton, and declined to give the 

requested instruction.

Appellant asserts that the arguments of Drs. Barnes and Patton on this 

issue confused the jury, misstated the law, and prejudiced the proceeding by 

forwarding an incorrect legal argument to the jury. She argues that the jury should 

have been alerted to the fallacy of Appellees’ theories that, 1) subsequent care 

should have been given to fix their deviations and that it was acceptable to solely 

blame Dr. Mauterer, and 2) it was permissible under the law for the jury to excuse 

Appellees’ negligence by pointing the finger at Dr. Mauterer as the culprit.

In 2018, a panel of this Court determined that a trial judge may 

properly exercise discretion in allowing testimony in a medical negligence action
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which points to the fault of subsequent non-parties on the issue of causation. See

Palmer v. Abedi, No. 2016-CA-000520-MR, 2018 WL 4050749 (Ky. App. Aug.

24, 2018). As in the matter at bar, the plaintiff in Palmer underwent a surgical

procedure to remove part of her colon to treat diverticulitis. Sometime during or

after surgery, she experienced a perforation or fistula with resultant complications. 

On appeal, a panel of this Court determined that the trial court properly allowed the

defendant surgeon, Dr. Abedi, to argue that a subsequent treating physician was

negligent in causing the injury. 

As in Palmer, the Appellees herein asserted that Dr. Mauterer, who 

treated Appellant after her transfer to Lourdes Hospital, could have been 

responsible for her claimed injuries. A medical negligence defendant may produce 

evidence which tends to discredit the plaintiff’s theory of the case, including 

evidence of other possible causes of the plaintiff’s injury. Sakler, 50 S.W.3d at 

214 (quoting Wilder v. Eberhart, 977 F.2d 673 (1st Cir. 1992), cert. denied 508

U.S. 930, 113 S. Ct. 2396, 124 L. Ed. 2d 297 (1993)). Drs. Barnes and Patton

produced such evidence at trial, and the Livingston Circuit Court properly 

exercised its discretion in refusing to instruct the jury to disregard such evidence. 

Appellant goes on to argue that she was entitled to a mistrial after the 

Appellees intentionally violated an evidentiary ruling by questioning her about her 

pension and disability insurance benefits. She directs our attention to case law 
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standing for the rule that evidence of income from a collateral source is not 

admissible to reduce the amount of a damage award, and that evidence of a 

collateral source is likely prejudicial. 

The first exchange at trial between Appellant and defense counsel to 

which she now objects consisted of a question about her pension. Defense counsel 

asked if she had vested pensions through both the Tennessee Valley Authority and 

her labor union, to which Appellant responded affirmatively. Appellant’s trial 

counsel objected to the question, but was overruled. The second exchange 

occurred when defense counsel questioned Appellant about a short-term disability 

benefit application she completed prior to the surgery at issue. In response to 

questioning, Appellant acknowledged that she was disabled and unable to work 

beginning the month before surgery. Appellant’s counsel objected to this 

questioning as well. The circuit court sustained Appellant’s objection on this 

second issue insofar as it might lead to a discussion of a collateral source, but 

allowed the question for the sole purpose of establishing that Appellant was 

disabled prior to surgery.

“The collateral source rule provides that benefits received by an 

injured party for his injuries from a source wholly independent of, and collateral to, 

the tortfeasor will not be deducted from or diminish the damages otherwise 

recoverable from the tortfeasor.” Schwartz v. Hasty, 175 S.W.3d 621, 626 (Ky. 
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App. 2005) (citations omitted). Due to the likelihood of prejudice, evidence of a 

collateral source is generally inadmissible. Transit Authority of River City TARC 

v. Vinson, 703 S.W.2d 482, 485 (Ky. App. 1985).

The vested pensions are not collateral sources of payment for 

disability. This does not implicate the collateral source rule and the circuit court 

did not err in overruling Appellant’s objection. As to the exchange about 

Appellant’s application for disability benefits prior to surgery, the circuit court 

properly allowed the question for the limited purpose of establishing Appellant’s 

disability before surgery. We will not disturb the circuit court’s discretionary 

ruling on admission of evidence absent a showing of abuse of discretion. Id. at 

484. The questioning regarding Appellant’s disability was relevant and did not 

impugn the collateral source rule. The Livingston Circuit Court did not abuse its 

discretion on this issue, and accordingly we find no error.

Appellant next argues that the circuit court improperly and arbitrarily 

limited the testimony of Dr. Fred Simon. After the disclosure deadline, and based 

on CR 26.05, Appellant sought to alter the disclosed opinion of her expert, Dr. 

Simon, by changing the date on which he believed an abdominal CT scan should 

have been ordered by Dr. Barnes. The circuit court denied the request. Appellant 

asserts that this constituted an abuse of discretion. 
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The question for our consideration is whether the Livingston Circuit 

Court committed reversible error in failing to grant the request. Appellant’s 

proffered supplementation of Dr. Simon’s expert disclosure occurred after the 

disclosure deadline and was not timely. As the circuit court may properly exercise 

discretion in evidentiary matters, Vinson, 703 S.W.2d at 484, and seeing no abuse 

of discretion, we find no error. 

Appellant goes on to argue that the circuit court erred in prohibiting 

the introduction of deposition testimony given by Dr. Patton on two occasions in 

an unrelated and prior civil action. That testimony consisted of Dr. Patton 

answering questions about his ruptured kidney, the pain arising therefrom, and 

whether he had to adjust his surgical practice to accommodate the pain. The 

Livingston Circuit Court initially allowed the prior deposition to be read to the jury 

to impeach Dr. Patton’s testimony in the instant action. After the deposition was 

read to the jury, the circuit court determined that it was not admissible. Appellant 

asserts that this was in error, prejudicing the proceeding against her, and warrants a 

new trial.

Appellant argues that the circuit court incorrectly concluded that Dr. 

Patton’s testimony in the instant matter that his kidney pain was “potentially 

incapacitating” was not inconsistent with his deposition in the prior civil action 

that his pain was “incapacitating almost.” Because the court determined that the 
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two statements were consistent, it disallowed the introduction into evidence of the 

prior statement for the purpose of impeaching Dr. Patton’s testimony in the instant 

action. Appellant has not demonstrated that the circuit court erred on this issue.

Appellant’s sixth argument is that the circuit court abused its 

discretion in denying her the opportunity to correct a mistake made by Dr. Richard 

Katz. During her case in chief, Dr. Katz testified that on the day of a scheduled 

examination, Appellant drove herself to St. Louis. Appellant states that this 

testimony was in error, as it was Appellant’s sister-in-law, Marla, who actually 

drove her to St. Louis. The circuit court denied Appellant’s request to recall Dr. 

Katz for the sole purpose of correcting this mistake. Appellant argues that this 

denial was erroneous and constituted prejudicial harm. 

“It is within the sound discretion of the trial court to regulate the order 

of presentation of proof during a trial.” Fraser v. Miller, 427 S.W.3d 182, 184

(Ky. 2014) (citation omitted). See also CR 43.02. The court may change the order 

of proof, though it is not required to do so, “for good reasons in furtherance of 

justice[.]” Fayette County v. Veach, 294 S.W.2d 541, 545 (Ky. 1956) (internal 

quotation marks and citation omitted). As the order of proof at trial falls within the 

sound discretion of the circuit court, Fraser, supra, and as the purported mistake 

Appellant sought to correct would have little bearing on the outcome of the 

proceeding, we find no error on this issue.
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Appellant next asserts that the Livingston Circuit Court abused its 

discretion in denying her motion for a change of venue. She argues that she was 

entitled to a new venue because 1) Drs. Barnes and Patton appeared in a magazine 

advertisement which provided general information about their practice, the 

physicians themselves, and the procedures they perform; and 2) a public service 

health information segment on regional TV channel WPSD on Wednesday, 

October 21, 2020, featured Dr. Barnes. Appellant contends that the magazine and 

television segment may have unduly influenced the jury and justified a change of 

venue.

KRS 452.010(2) provides that, 

A party to any civil action triable by a jury in a Circuit 

Court may have a change of venue when it appears that, 

because of the undue influence of his adversary or the 

odium that attends the party applying or his cause of 

action or defense, or because of the circumstances or 

nature of the case he cannot have a fair and impartial trial 

in the county.

The question for our consideration is whether the magazine 

advertisement and television segment constitute “undue influence [or] . . . odium” 

resulting in an inability to have a fair and impartial trial in Livingston County. As 

to the magazine advertisement, the matter was addressed in voir dire when the 

court asked potential jury members if they were aware of the advertisement. Only 

one person answered in the affirmative and he was dismissed from service. 
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Regarding the public service segment featuring Dr. Barnes, the court asked the jury 

if any members had seen the pre-recorded segment. No jury member responded in 

the affirmative. A circuit court’s ruling on a motion seeking a change of venue is 

reviewed for abuse of discretion. Peel v. Bramblett, 305 Ky. 577, 204 S.W.2d 565, 

566 (1947). We find no abuse of discretion, and thus no error.

Appellant’s final argument is that the circuit court abused its 

discretion by denying her request to question potential jurors about the burden of 

proof during voir dire. Appellant originally moved in limine to bar either party 

from questioning potential jury members about the burden of proof. This motion 

was granted. Thereafter, Appellant sought to withdraw the motion so that she 

could question jurors on the burden of proof. The court denied Appellant’s request 

to withdraw the motion because it had already been granted. Appellant asserts that 

this constitutes reversible error. 

“A trial court has wide discretion in permitting or limiting the voir 

dire examination of prospective jurors in civil cases.” Farmer v. Pearl, 415 

S.W.2d 358, 360 (Ky. 1967) (citation omitted). Appellant has not demonstrated 

that the Livingston Circuit Court abused its discretion in granting her motion in 

limine and then refusing to reverse that decision. We find no error on this issue.
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CONCLUSION

After thorough review, we find no error. The circuit court did not err 

in granting a directed verdict on the issue of informed consent in favor of 

Appellees. In addition, the Livingston Circuit did not err in refusing to instruct the 

jury on subsequent malpractice; in failing to grant a mistrial after defense counsel 

asked her about pension and disability benefits in the presence of the jury; in 

limiting certain expert testimony; in denying her an opportunity to correct a 

mistake in testimony; in denying her motion for a change of venue; nor, in 

prohibiting her counsel from discussing the burden of proof. For these reasons, we 

affirm the judgment of the Livingston Circuit Court.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Edwin A. Jones

W. Lucas McCall

Paducah, Kentucky

BRIEF FOR APPELLEES:

Patricia C. Le Meur

John W. Phillips, Jr.

Katherine T. Watts

Louisville, Kentucky