RENDERED: NOVEMBER 2, 2017 

TO BE PUBLISHED 

2o 15-sc-000483-DG [Q) ffe\ LJ ~ 11 (i1/L z l<r;. {2.,t114.,., De. 

JOHN ADAMS, M.D., AND 

ELIZABETH WALKUP, A.R.N.P .. APPELLANTS 

v. 

ON REVIEW FROM COURT OF APPEALS 

CASE NOS. 2013-CA-001159 AND 2013-CA-001461 

HARDIN CIRCUIT COURT NO. 12-CI-01711 

M.(\.RK SIETSEMA 

OPINION OF THE COURT BY JUSTICE VENTERS 

REVERSING. 

APPELLEE 

Appellee, Mark Sietsema, brought this medical malpractice action 

alleging Appellants John Adams, M.D., and Elizabeth Walkup, A.R.N.P., were 

negligent in treating, or more accurately, in failing.to treat, his illness while he 

was an inmate in the Hardin County Detention Center (HCDC), thereby · 

causing him to unnecessarily endure days of pain and suffering. Appellee 

primarily asserts that Adams, as medical director for HCDC, was inattentive to 

inmate medical needs, and that he failed to adequately instruct the jail's 

medical staff how to handle patients that refuse to take medications. Appellee 

also asserts that Walkup negligently failed to provide the jail nursing staff with 
a clear order as to when Appellee shouid have been taken to a hospital 

emergency room. 

The trial court entered a summary judgment dismissing Appellee's claims 

against Adams and Walkup because he had no expert evidence to establish the 

relevant standards of care or to show that Adams' and Walkup's breach of the 

standard of care caused the Appellee's damages. The Court of Appeals . 

reversed the trial court upon its conclusion that the negligent conduct asserted 

by Appellee fit within the res ipsa loquitur doctrine and thus could be sustained . ) 

at trial without ex.pert testimony.1 Upon discretionary review, we conclude that 

Appellee's failure to produce expert evidence is fatal to his claim, and so, we 

reverse the Court of Appeals and reinstate the sum,mary judgment granted by . the trial court. 

I. FACTUAL AND PROCEDURAL BACKGROUND 

Southern Health Partners, Inc. (SHP) contracted to provide health care 

services to inmates of HCDC, including the services of a .i:)hysicia_.n. Pursuant 

to its contract with HCDC, SHP employed a registered nurse and several 

lice~sed practical nurses to staff the jail's medical unit around the clock. SHP 

contracted with Adams to serve as the jail medical director. That contract 

specifically designated Adams as the primary care physician for all inmates at 

the jail. 

. I .The trial court dismissed the Appellee's claims against the jail nursing staff on 

grounds of governmental immunity. The Court of Appeals also reversed that Iuli.ng, 

but the pending claims between Appellee and the nurses are not part of this appeal. 

2 
Among other duties set forth in the contract, Adams agreed to "[b)e 

responsible to provide 24-hour continuous on-call physician coverage when in 

town and available;" and to "[a]ccept telephone calls from SHP personnel to 

evaluate medical problems and provide medical decisions, including telephone 

prescriptions, emergency room referrals, and such other items as are 

reasonably necessary." With SHP's con~ent, Adams employed Walkup to fulfill 

his duty of making weeklyjail visits to monitor and evaluate the quality of 

patieiit care. Adams personally visited the jail monthly., 

To facilitate Adams' assent on various medical forms· used at the jail, 

Adams authorized Walkup to direct nurses to use his signature stamp on the 

forms during his absence. Walkup testified that the signature stamp was to be 

used to record Dr. Adams' assent on lab requests and other documents, 

including inmates' refusal of treatment forms. She testified that the use of the 

signature stamp facilitated the medical treatment of inmates by allowing 

essential documents to remain with the inmate's medical record, rather than 

setting them a~ide in a stack to be signed by Dr. Adams at his next jail visit. 

The stamped documents could then be tabbed within the medical record and 

easily located when she reviewed the records at her next weekly visit. 

Appellee claims that the nurses' improper use of.the signature stamp 

caused him to suffer unnecessarily over the course of several days. After 

experiencing fever and vomiting for two days, Appellee requested medical 

treatment. The next morning, a staff nurse visited him and noted his · 

complaints of abdominal pain, nausea, vomiting, and fever. Appellee reported 

3 
that he had a histocy of diverticulitis and that a large portion of his colon had 

been surgically removed. The nurse initiated a course of the anti-nausea 

medication Phenergan and· a restrjcted diet. 

The next day, a different nurse visited Appellee. On this occasion, he did . not specifically complain of abdominal pain, but he still reported nausea, 

vomiting, and the fever he had had for three days. The treatment plan 

approved by the Medical Team Administrator, Brenda Brown, R.N., prescrib~d 

a Phenergan suppository and continuation of the special diet. It also directed 

. . 

that Appellee be placed in isolation until his vomiting stopped. 

Four days later, still in isolation,.Appellee again filled out a written 

request for medical treatment. He complained of vomiting an~ constipation for 

six days. He reques~ed an antibiotic and a stool softener. Walkup arrived at 

the jail the next day .. She diagnosed his condition as diverticulitis and mild 

dehydration. She ·ordered a regimen of clear liquids for 48 hours, Phenergan, 

and antibiotics. She left a written order for Appellee to be taken to the 

emergency room if he was "unstable or unable to tolerate fluids." 

The following afternoon Appellee rejected· the prescribed medications. 

The attending nurse had him sign a "Refusal of Medical Treatment and Release 

of Responsibility" form and advised him to inform the medical staff if his 

vomiting continued. Instead of notifying Adams and securing his direct 

acknowledgement of Appellee's refusal of treatment, the nurse s~ped his 

signature t9 the form. No one at the jail contacted Walkup during this time 

concerning Appellee's medical status. 

4 
For the next two days, Appellee continued to refuse his medication. At 

each refusal, the nurse completed the standard refusal of treatment form, 

stamping it with Adams' signature without contacting him or Walkup.· On the' 

third morning, Appellee. was discovered collapsed on the floor of his cell. He 

again refused medication, and again, the treatment refusal form was completed 

· and stamped with Adams' signature, and no contact was made with Adams or . . 

·Walkup. After further assessment, Nurse Brown ordered that Appellee be 

taken to the emergency room of the local hospital. At that point, Brown · 

informed Walkup that Appellee had been taken to the hospital, and Walkup 

informed Adams. Until then, Adams was never made aware of ~ppellee's 

condition, or even that Appellee was an inmate/patient at HCDC. Later, 

Appellee was transferred to intensive care at the University of Louisville 

Hospital where he underwent surgery for a bowel obstruction. 

Based upon the foregoing events, Appellee brought medical negligence 

claims against Adams, Walkup, and the SHP nursing staff at the jail. He 

specifically claim that he suffered unnecessary mental and physical pain due to 

the. three-day delay in pis hospitalization, which he further claims was caused 

by: 1) the nurses' use of Adams' signature stamp which made it·unnecessary 

for them to inform Adams of Appellee's condition when Appellee refused his , 

medication; and 2) W alkup's inadequate instructions to the jail nurses about . . 

the circumstances which would compel Appellee's immediate transport to a 

hospital. 

5 
During pr~-trial discovery, Appellee identified only one potential expert 

witness, Nurse Susan Turner. Although Turner's opinion found fault in the 

care provided for Appellee by the jail nursing staff, she expressed no opinio~ 

critical of Adams or Walkup. Adams and Walkup moved for summary 

judgment based upon the lack of evidence critical of their conduct. 

The trial court concluded that Appellee could not prove liability on the . . 

part of Adams or Walkup without an expert opinion to identify how Adams' and 

Walkup's conduct breached the standard of car<? and caused injury to Appellee . 

. . 

The Court of Appeals reversed the trial court's decision based upon its 

conclusion that whether Adams or Walkup, or both of them, rendered deficient 

care to Appellee under the factual circumstances of this case could be 

determined ~thout expert opinion. 

II. ANALYSIS 

A~ A trial court's decision to grant summary judgment is subject to de 

nova appellate review. · 

. The first point of contention addressed by the parties to this appeal 

concerns the standard of review by which we should judge a trial court's 

decision to grant s_ummary judgment when a medical malpracti~e claimant fails 

to support his cla.irr1;-with expert testimony. Appellants Adams and Walkup 

insist that appellate review must grant substantial· deference to ~e trial court. 

They argue that "abuse of discretion" is the applicable standard of review. 

Citing Baptist Healthcare System, Inc. v. Mill~r, 177 S.W.3d 676, 680-681 (Ky. 

2005), and Miller v. Eldridge, 146 S.W.3d 909, 917 (Ky. 2004), they contend 

6 
that the Court of Appeals gave insufficient deference to the trial court's opinion, 

which they characterize as an evidentiary ruling traditionally left to the 

discretjon of the trial court. Appellee argues that the issue upon which ~e 

trial court granted summary judgment is a question of law to be reviewed by an 

appellate court de novo. 

To keep th~s threshold issue in its proper perspective, we should note the 

comment of the United States Supreme Court in Koon v. United States, 518 

U.S. 81, 100 (1996): 

Little turns, however, on whether we label review of.this particular 

question abuse of discretion or de novo, for ari abuse-of-discretion 

standard does not mean a mistake of law is beyond appellate 

. correction. A [trial) court by definition abuses its discretion when 

it.makes an error of law .... The abuse .. of-discretion standard 

includes review to determine that the discretion was not guided by 

erroneous legal con~lusions. 

We made a similar observation in Sargent v. Shaffer: 

When it is argued that a trial court abused its discretion because 

its decis.ion was "unsupported b~ sound legal principles,"[2) we 

must examine the application of those legal prlriciples, and that is 

inherently a matter of law. We generally accord no deference to a 

trial court's view of the law. Thus, as a practical matter, in that 

limited instance there is no difference between. review for abuse of 

discretion and de novo review. 

467 S.W.3d 198, 203 n~ 5 (Ky. 2015). 

2 Commonwealth u. English, 993 S.W.2d 941, 945 (Ky. 1999): "A trial court 

abuses its discretion when its decision is arbitrary, unreasonable, unfair, or 

unsupported by sound legal principles." 

7 
Although our ultimate decision may be the same under either standard 

of review, we nevertheless clarify the applicable standard here. This case ~ose 

from a summary judgment entered in the trial court, which by definition .is a 

legal, rather than factual, determination. CR 56.03. Ordinarily, "We review the 

trial court's issuance of summary judgment de novo and any factual findings . . 

will be upheld if supported by substantial evidence and not clearly erroneous." 

. Board of Regents of Northern Kentucky University v. Weickgenannt, 485 S_.W.3d 

299, 306-307 (Ky. 2016) (citation omitted); 

· To similar effect, we said in Shelton v. Kentucky Easter Seals Society, Inc.,· 

"Appellate review of a summary judgment involves only legal questions and a 

determination of whether. a disputed material issue of fact exists. So, we 

operate under a de novo standard of review with no need to defer to the trial 

court's decision." 413 S.W.3d 901, 905 (Ky. 2013). 

More specifically pertaining to summary judgments based upon the 

plaintiffs failure to obtain expert medical opinion testimony, we said in 

Blankenship v. Collier that "an· appellate court always reviews the _substance of 

a trial court's summary judgment ruling de novo, i.e., to determine whether the 

record reflects a geq.uine issue of material fact." 302 S.W.3d 665, 668-669 (Ky. 

20~0). Our decision in Blankenship clearly recognized that, fundamentally, the 

lack of expert testimony is "truly a failure of proof [for which] a summary 

judgment is appropriate." Id. at 668. Whether there is "a failure of proof," or 

as it is sometimes called, insufficient evidence to sustain a particular claim, is 

a question of law. Lackey v. Commonwealth, 468 S.W.3d 348, 355 (Ky. 2015) 

8 
("The question of whether there was sufficient evidence to warrant a thirddegree escape instruction is a question of law to be reviewed de novo."). 

Appellants' argument to the contrary stems from inartful language used in 

Baptist Healthcare. 

In Baptist Healthcare, !he trial court deter.mined that testimony of an 

expert phlebotomist was an indispensable component of the plaintiffs proof. 

However, instead of dismissing the case on summary judgment for lack of 

evidence sufficient to create a genuine issue of material fact, the trial court 

granted a continuance allowing the plaintiff additional time to o.btain the 

essential expert witness. Id. at 679-680. Ultimate~y, the plaintiff was 

successful at trial and the defendant appealed, arguing ~at the trial court 

erred by failing to grant the motion for summary judgment and, alternatively, 

that the trial court erred in granting the continuance. Id. at 680. 

Upon review of the trial court's failure to grant summary judgment, the 

Baptist Healthcare Court found "no abuse of trial court discretion in. continuing 

, the case to allow Ms. Miller to identify an expert, trial court error in denying 

[the defendant hospital's] motion for summary judgment; or other reversible. 

error." Id. at 677. The Court also noted that the "trial judge has wide 

discretion to admit or exclude ~vidence including that .of expert witnesses." Id. 

at 680-681. Significantly, those references to the abuse of discretion standard 

do not pertain to the legal question of wh~ther the lack of expert testimony was 

a failure of proof requiring·dismissal of the plaintiffs claim: 

9. 
After examining the issue in light of KRE 702-705, the Baptist Healthcare 

Court observed that while "it was not unreasonable for [the plaintiff] to contend 

that . . . the principle of res ipsa loquitur applied to the case[,] . . . the trial 

judge, acting well within her discretion, saw it otherwise." Id. at 681. This 

.unfortunate reference to the trial court's discretion confuses the admissibility 

of expert opinion evidence with an entirely different concept: the sufficiency of 

evidence needed to sustain .a claim of professional negligel:'lce. Mo"re precisely, 

when the issue is summary judgment,·the question is not whether an expert· 

opinion is admissible evidence; the question is whether the plaintiff can 

possibly demonstrate witho'!,lt expert opinion testim~ny the existence of ~ · 

genuine issue of material fact as to the defendant's breach of duty or causation 

of damages, fill:d thereby refute the defendant's ~ontrary assertion.a KRE 702-

705 deal exclusively with the admissibility of expert opinion and have nothing 

whatsoever to do with the elements of a tort, and whether those elements can 

be sufficiently proven wit,hout expert testimony. . 

A trial ·court's decision _to admit or reject evidence in the form of opinion 

testimony ·under KRE 702-705 is very different from the decision to dismiss a 

case oh summary judgment for. insufficient evidence, or "a failure of proof." 

The former is reviewed under the abuse of discretion standard, but we have 

a CR 56.03 ("[Summary judgment] shall be rendered forthwith if the pleadings, 

. depositions, answers to interrogatories, stipulations, and admissions on file, together 

with the affidavits, if any, show that there is no genuine issue as to any material fact 

and that the moving party is entitled to a judgment as a matter oflaw."). . . 

10 
·. 

consistently held that the fatter is a question of law to be reviewed on appeal de 

novo. 

· Miller v. Eldridge involved the applicable standard for app~llate review of 

trial court decisions on the admissibility of scientific evidence under Daubert v. 

Merrell Dow. Pharmaceuticals, Inc., 509 U.S. 579 (1993) .. Eldridge is not a 

summary judgment case, and it does not involve the question of whether an 

expert opinion was necessary to sustain a me~ical malpractice claim. Apart 

from our acknowledgrhent that "it is sometimes difficult to distinguish between 

the de novo, clear error, and abuse of discretion standards of review," id. at 

9 i 7, nothing in Eldridge lends itself to the resolution of the issues jn the 

instant case. 4 

B. Appellants were entitled to summary judgment dismissing Appellee's 

claims against. them. 

Upon moving for summary judgment, Adams and Walkup had the 

· burden of demonstrating to the trial court that Appellee's failure to come forth 

with expert testimony was fatal to his claims against them. Appellee responded 

4 In Eldridge, and in cases too numerous to conveniently cite here, this Court 

and the Court of Appeals have gratuitously recited by rote that "abuse of discretion is 

the proper standard of review of a trial court's evidentiaiy rulings." See, for example, 

Goodyear Ti.re and Rubber Co. v. Thompson, 11 S. W.3d 575, 577 (Ky.· 2000). The 

problem with that boilerplate language is that the phrase "evidentiary rulings" 

captures an extremely broad and vaguely defined range of trial court activity. A trial. 

court's interpretation of specific provisions of the Kentucky Rules of EVidence could be 

called an "evidentiary ruling," but we have steadfastly held that the interpretation of 

our Rules of Evidence is an issue of law to be reviewed on appeal de nopo. See Meyers 

v. Commonwealth, 381S.W.3d280, 283 (Ky. 2012). A trial court's ruling to suppress· 

criminal evidence because of a constitutional violation is an "evidentiary ruling" but it 

is also a ruling that on appeal is reviewed de novo. See Williams v. Commonwealth, 

364 S.W.3d 65, 68 (Ky. 2011). Without a more precise articulation of the rule, the 

best that can be said of it is that some, but not all, "evidentiary rulings" are reviewed 

for abuse of discretion. Clearly, some are not. 

11 
to their motion with the argument that under the circumstances of his case, no 

medical expert evidence was necessary. 

Most medical malpractice claims involve issues of science or professional 

skill outside the ordinary experiences and range of knowledge of typical jurors 

and judges. For that reason, most, but cei:tainly not all, medical malpractice · 

claims cannot be .proven without expert opinion testimony to establish that the 

conduct in question departed from the applicable standard of care and was a 

proximate cause of the damages claimed. See Perkin.S v. Hausladen, 828 

S.W.2d 652, 655-656 (Ky. 1992);. Greer's Adm'r v. Harrell's Adm'r, 206 S.W.2d 

943, 946 (Ky. 1947); Caniffv. CSX Transportation, Inc., 438 S.W.3d 368, 374 

(Ky. 2014). The expert opinion testimony admitted in accordance with KRE 

702-705 provides information to assist the finder-of-fact, either a trial judge or . ' 

jury, in determining whether the conduct in question violated the standard of 

care and caused the damages claimed by the plaintiff. 

We have recognized that in at least two circumstances the fact-finder can 

fairly and competently evaluate the claim without the benefit of expert opinion 

, testimony. First are the res ipsa loquitur cases in which "the common 

knowledge or experience of laymen is extensive enough fo. recognize or to infer 

negligence from ~e facts." Jarboe v .. Harting, 397 S.W.2d 775, 778 (Ky. 1965) 

(citations omitted). "Expert testimony is not required ... in res ipsa loquitur 

cases, where 'the juzy may reasonably infer both negligence and causation from 

the mere occurrence of the event and the defendant's relation to it."' 

Blankenship, 302 S.W.3d at 670 (citation omitted) .. Second, expert opinion is 

12 
not required "where the defendant physician makes certain admissions that 

make his negligence apparent." Id. 

Neither Adams nor Walkup have admitted that they violated a standard 

of care and so Appellee relies upon res ipsa loquitur- the theory that any 

reasonable person could reasonably infer negligence from circumstarices of the 

injury; or generally, that the injury could not have occurred btit for the 

negligence of Adams or Walkup, or both of them. 

l. · Appellee's claim that Appellants Adams and Walkup negligently 

trained the jail nursing staff could not be sufficiently established 

without expert opinion testimony. 

·It is tin.disputed that Adams was ·never informed of Appellee's condition 

and·that had he-been so informed, he would as his duty required, have 

undertaken immediate steps to treat it.· Appellee's theory of negligence on the 

part of Adams is that .by allowing nurses to stamp his signature on Appellee's 

refusal of treatment form, Adams remained. purposefully ignor~t of Appellee's 

condition and for that reason is estopped from denying the knowledge that he 

admits would have prompted him to take action. A necessary ingredient of that 

argument is Appellee's implied assumption that the nurses were instructed 

that if they used the signature stamp on treatment refusal forms, there w~s no 

medical need to contact Adams or Walkup. We find no evidence to support 

that assumption. 

The most apparent purpose of the doctor's signature, stamped or 

otherwise, on the refusal of treatment form is to record the fact that the doctor 

was made aware that the patient was not taking the prescribed medication. 

13 
Nothing on the form suggests to an attending nurse that the use of the doctor's 

signature stamp obviates the need to inform the doctor. To the ordinary 

medically-uneducated layper~on, common sense and experience would suggest 

that with respect to a treatment refusal form, the signature stamp was to be 

·used in conjunction with a call to the doctor who was not at the scene to sign 

directly, rather than in lieu of a call to the doctor. 

We find no indication in the record that any evidence existed to show 

·that the nurses were instructed not to contact Adams or Walkup when a 

patient refused treatment. 5 Adams testified that on most of his monthly visits 

to the jail he reminded the jail staff, "If you ever need me, ifyou·ever need 

anything, my phone is always open." 

Adams .and Walkup both testified that they would have expected the 

nurse who filled out Appellee's r~fusal ·of medical treatment form to contact 

them and .notify them that Appellee was refusiiig his medication without 

explicit instruction or traming to do so. Adams testified, "[the SHP nurses] are 

licensed, seasoned nurse practitioners-licensed seasoned nurses. They had 

been doing general medicine for a long time. They knew what they were doing. 

If they saw something they didn't like, they should have picked up the phone 

and called me." 

s Nurses at the jail gave deposition testimony that Brown, R.N., the Medical 

Team Administrator, instructed them to call her, not Adams. Adams testified he was 

unaware of the practice and.would have objected to it. 

14 
. Adams testified that the. nurses' duty to communicate with the physician 

does not vary based upon the institutional setting, and that the nurses at a 

detention facility, because of their. professional training and experience, knew 

when a patient's circumstances required .a call to the doctor. Adams also 

testified that in accordance with their professional training and experience, the 

jail nurses knew that a signature stamp did not supplant their duty to assess 

their patient's needs an4 make the clinical decision that a call to- the doctor 

was required. Adams acknowledged that he was aware of the practice of using 

. . his signature stamp on refusal of medical treatment forms, but he explained: 

Let's s_ay we diagnose you With tennis elbow and we give ·you 

. Motrin and you refuse Motrin. That's just not that important. But 

if you're refusing an antibiotic for the diverticulitis, that is 

something .important. And that's clinical decision making. They 

are well seasoned nurses. They know when they should call. . .. 

[Tjhe stamp was not to keep them from being able to call me. The 

stamp was just used as an administrative tool to keep the paper in 

the chart. 

If a custom or protocol of the medical profession established a contrary 

standard for using the signature stamp upon which Adams and Walkup should 

have.instructed the nurses, it was incumbent upon Appellee to produce it. In . ' 

the absence of such evidence, we see no reason to suppose that the jail nursing 

staff would fail to contact the doctor; nor any reason to believe that Adams or 

Walkup should have anticipated the need to train the jail staff on the use of the 

signature stamp, especially on the need to·call them when the patient refusing 

treatment had collapsed on tlie floor, vomiting and writhing in pain . 

. We disagree with the Court of Appeals' view of this case as pre~enting a 

res ipsa loquitur situation in which no expert testimony is needed. It would not . . 

15 
" be within the common experience of the ordinary person to presume that a 

nurse's authority to use the doctor's signature stamp negated the need.to 

contact the doctor about medically significant events or that a physician must 

train nurses on the need to contact the physician, with or with01.;i.t the use of a 

signature stamp. Expert testimony would be needed to show that the standard 

of care requires such training. 

Although our reasoning differs somewhat from the trial court's, 6 we 

nevertheless agree with the trial court that the failure to train aspect of 

Appellee's claim_ of negligence required expert testimony. Emberton v. GMRI, 

Inc., 299 S .. W.3d 565, 576 (Ky. 2009) ("[A]n appellate court may affirm a lower 

court's decision on other grounds as long as the lower court reached the 

correct result."). 

2. Appellee's claim that Walkup was negligent in the preparation of her 

order to the jail nursing staff could not be established without expert 

opinion testimony. 

Appellee asserts that Walkup was negligent because her order 

directing the nursing staff to transport Appellee to the hospital if he was 

. . 

"unstab~e or unable to tolerate fluids" was ambiguous, thus causing the 

··three-day delay in getting him to the hospital. In her own defense, Walkup 

testified in her deposition that her order, phrased as it was, properly instructed 

the nursing staff and that, given the symptoms· they observed, compliance with 

6 The trial court emphasized the need for expert testimony with respect to 

Adams' role as a jail medical director and the training duties associated with that 

position. Our focus is on Adams' duties as _the inmate's primary care physician. 

16 

( 
her order compelled them to send Appellee to the hospital. Adams agreed, 

te~tifying that Appellee, having collapsed in his cell, was indeed "unstable," and 

that W alkup's order adequately communicated the need to move Appellee to a 

hospital without further instructions or guidance from Adams or Walkup. He 

added, "Often times I'll write something and· [attending nurses] will call and 

say, we're not sure we knew what you meant, and I will clarify immediately. So 

if the order was not understood or.ambiguous at all, there should have been a 

phone call asking for clarification of the order." 

We agree with the trial court's summary disposition of this issue. The 

meaning ofWalkup's order and its application to Appellee's condition is not· 

something that "any layman is competent to pass judgment and co_nclude 

from common experience that such things do not· happen if there has been 

proper skill and care." Perkins, 828 S.W.2d at 655 (citations omitted). The 

res if)sa loquitur doctrine we have recognized in other circumstances is 

inapplicable here. Expert testimony was necessary to establish that Walkup 

was negligent in the preparation of her order. 

III. CONCLUSION 

In summary, we conclude that the trial court's decision to grant 

summary judgment based upon a failure of proof is subject to de novo review 

~n appeal. Upon such review, we agree that in the absence of expert testimony 

to the contrary, Appellee's e_vidence failed to create a genuine issue of material 

fact as to Appellants' breach of a standard of care, and as a matter of law, 

·17 
Appellants were correctly granted summary judgment. We, therefore, reverse 

the opinion of the Court of Appeals in this matter and reinstate the trial court's 

judgment dismissing Appellee's claims against Adams and Walkup. · 

All sitting. Minton, C.J.; Cunningham, Hughes, Keller, and VanMeter, 

JJ., concur. Wright, J., concurs in part and dissents in part by separate 

opinion. 

WRIGHT, J., CONCURRING IN PART AND DISSENTING IN PART: While I 

otherwise concur with the majority, i respectfully dissent as to its holding 

concerning Dr. Adams. The majority insists that Appellee's claim against Dr. 

Adams required an expert witness to survive a motion for summary judgment. 

I disagree. We have accepted two circumstances under which expert testimony 

is unnecessary in medical cases such as this, pursuant to the doctrine of res 

· ipsa loquitur. The first is "where the common knowledge or experience of· 

laymen is extensive enough to recognize or to infer negligence from the facts." 

Jarboe v. Harting, 397_ S.W.2d 775, 778 (Ky. 1965). The second exception to 

the need for expert testimony occurs by way of "admissions by the defendant 

· doCtor." Id. Both exceptions apply in the present case. Therefore, I would not 

place the onerous burden of securing an expert witness upon the Appelleeand would allow his claim against Dr.·Adams to suryive the motion for 

summary judgment. 

Southern Health Partners (SHP) contracted with Hardin County to- . . 

provide medical services to. the inmates of the Hardin County Detention Center 

(HCDC). In ~' SHP contracted with Dr. Adams in April 2007 to provide 

18 
"professional medical services to inmates of" HCDC. In his contract with SHP, 

Dr. Adams agreed to provide these "professional medical services" at lfCDC 

approximately five hours per week.· Dr. Adams also agreed to "provide 24-hour 

continuous on-call physician coverage at [HCDC) when in town and available" 

and to "accept telephone calls from SHP personnel to evaluate medical 

. problems and provide medical decisions .... " Dr. Adams testified during his 

deposition that he was HCDC's medical director and the primary care 

physician for its inmates. 

In addition to his duties at HCDC, Dr. Adams maintained a family 

practice, oversaw a medical clinic, and contracted with SHP to be the primary 

physician for six ·other detention centers across the Commonwealth. Dr. 

Adams and Nurse Practitioner Walkup testified that Dr. Adams only visited 

HCDC one~ per month for one to two.hours. Dr. Adams instead delegated the 

we~kly visits required by the terms of his contract to Walkup. Walkup was 

tasked with visiting all seven jails for which· Dr. Adams served as primary 

physician in two days each week-visiting three detention centers one day and 

four the other. Walkup saw patients in Dr. Adam.s's cU.nic the remainder of the ~ 

week. 

I will turn to the first exception where expert testimony 1

is unnecessary in 

a medical case: "where the common knowledge or ex:perience of laymen is 

extensive enough to recognize or to infer negligence from the facts." Jarboe, 

397 S.W.2d at 778. Particularly relevant to this exception is SHP's "refusal of 

medical treatment" form, which was filled out each of the six times Appellee 

19 ~ 
refused his medication leading up to his eventual collapse and trip to the 

emergency room. The bottom of that form reads ."SHP Medical Director's 

Acknowledgement (please initial)." Dr. Adams indicated in his. deposition that 

he did not know why the form requires his signature; however, the reason is 

obvious. Just as Walkup testified, Dr. Adams's signature was necessary 

because he needed to be aware when patients refused medical treatment. 

Shortly after signing the contract with SHP, Dr. Adams sent a signature 

stamp to HCDC .. Walkup testified she told the ril.'.'-rses to utilize the sta.I'.np 

rather than obtaining the doctor's signature on "refusal of medical treatment" . 

forms. Thus, the nurses stamped Dr. Adams's acknowledgement on the 

. . 

. "refusal of medical treatment" document rather than ever discussing any 

refusal with the physician. (In fact, according to deposition testimony, the 

forms were often stamped in advance or simply photocopied With the signature 

already in place.) Dr. Adams had been the medical director and primary 

physician for HCDC for 3 years. Obviously, he had to implement and 

understand the imp~ct of his procedures or lack thereof .. 

The very existence of this form and Dr. Adam.s's failure to have any 

knowleq.ge of the information contained therein clearly demonstrated to the . 

jury both the duty Dr. Adams owed his patients and tpe breach of that duty. 

Obviously, the refusal of medication form required the medical director's (Dr. 

Adam.s's) signature because it was important to the health and safety of the 

patient that he have the information. Dr. Adams's actions allowed the jury to 

"recognize or infer neglige_nce" without the need of an expert witness. 

20 
Due to the use of the, signature stamp-and much to Appellee's 

detriment-Dr. Adams remained unaware of Appellee's refusal to take P,is · 

medication over the course of. several days until Appellee was sent to the 

emergency room at a local hospital. An expert witness testified that the nurses 

were negligent in failing to contaCt Dr. Adams concerning Appellee's inability to 

take the prescribed medications. If it was negligent for the nurses to fail to . 

inform Dr. Adams; it would have to be negligent for Dr. Adams to ignore that 

information on the six separate occasions his signature was affixed to the 

"refusal of medical treatment." 

I will now tum to the second exception to the need for expert testimony 

involving "admissions by the defendant doctor." Id. During Dr. Adams's 

deposition testimony, he was questioned about what he would have done if he 

had actual knowledge that Appellee continued to vomit. Dr. Adams answered, 

"[i]f they would have called and said, that he is continuing to vomit ... I wo:uld 

have said, send him to the ER." Through his signature stamp, Dr. Adams 

chose to ignore the vital information contained in the "refusal of medical 

treatment" documents. Had Dr. Adams not empioyed the use of the stamp in 

the manner in which he did, and had, instead, signed the documents himself 

or had a nurse discuss the patient with him within a reasonable time, 

Appellee's condition would not have ·deteriorated to the point it did before he 

was finally taken to the hospital. We know this through Dr. Adams's own 

testimony. 

21 . 
Eventually, Appellee was taken to the hospital~ but only after he 

collapsed in his cell .. The same day he was taken to the emergency room, . . 

. . 

· Appellee was transferred to the University of Louisville Hospital, where they 

operated on him the following day. The emergency surgery would have 

occurred sooner, b~t Appellee was so dehydrated by this point that it had to be 

postponed to ensure he was properly hydrated. Appellee (who was thirty years 

of age at the time and had previously had several inches of his colon removed 

due to div~rticulitis) suffered respiratory failure, requiring intubation, and had 

bilateral chest tubes placed after both of his lungs collapsed. Eventually, . . 

Appellee stabilized and had an exploratory laparotomy which revealed multiple . 

small bowel adhesions, which were repaired. 

It is true, as the majority points out, that Dr. Adams did not know 

. Appellee had refused his medications, as the refusal of medical treatments 

were stamped with his signature and he chose not to read them ~r discuss 

them with the nurses. We have long held that the use of a signature stamp 

may constitute a signature. Blackbum v. City of Paducah, 441S.W.2d395, 

397 (Ky. 1969) (in.temal citations omitted). 

First, I readily acknowledge that there are many circumstances in which 

the use of a signature stamp would be perfectly acceptable. One example 

would be if Dr. Adams had given standing orders about circumstances which, if 

present, called for the use of the stamp. For instance, if he instructed the · 

nurses when a patient refused an over-the-counter analgesic that they could 

simply stamp his name without contacting him, tha,t would likely have been 

22 
appropriate. Likewise, had Dr. Adams told the nursing staff over the phone to 

stamp the refusal of medical treatment after being advised of the condition of 

the patient, Dr. Adams would have probably met his duty of care . .In another 

scenario that would likely comport with Dr. Adams's duty, he could have 

authorized the use of the stamp for certain time intervals, and then had the 

nurses contact him with the details of the documents within a reasonable time. 

However, none of these things happened. Instead of a re~sonable delegation 

with oversight, Dr. Adams signed the "refusal of medical treatment" and . . 

ignored the information contained therein. 

Dr. Adams lacked knowledge of Appellee's refusal because he c1wse to 

cause the documents to be signed through the signature stamp without ever 

reading, reviewing,' or discussing the information found in them. However, Dr. 

Adam.s's lack of ,actual knowledge did not remove his responsibility to 

Appellee's care. As we held in Inquiry Comm'n v. Lococo, 18 S.W.3d 341 (Ky. 

· 2000), it amounted to gross negligence for an attorney to fail to oversee her 

. employee's use of a signature stamp in the administration of an escrow 

account. If it is gross negligence for an attorney to fail to properly supervise 

the use of her.signature stamp in the administration of mere money, how much 

more so would a doctor be grossly negligent in failing to properly supervise the 

use of his signature stamp in a matter of life and death? 

Here, Dr. Adams failed to make any provision to ensure that he knew the 

information in the documen~s he signed. Appellee's sickness occurred .more 

than thr-ee ye~s after Dr. Adams became the primary care physician for the 

23 
inmates of HCDC and the nurses began using the signature stamp. As noted, 

thel".e· were many ways in which Dr. Adams could have had the nurses 

appropriately use the signature stamp. He just failed to use any of them ·or to 

set up any procedures regarding its use. He just chose not to do so. He 

testified that had he known the information contained in Appellee's "refusal of 

medical treatment," he would have taken imm_ediate steps to treat Appellee's 

condition. However, it was through Dr. Adams's own procedures (or, rather, 

lack thereof) that he was unaware. As the old maxim goes, "ignorance of the 

law is no excuse"; neither is a doctor's willful ignorance of his patients' medical . ' 

conditions. 

Ultimately, Dr. Adams failed to follow the terms of his contract requiring 

him to act as the primary care physician for the HCDC inmates-and, more 

specifically, he failed to act as Appellee's primary care physician. It was his 

duty-and the duty was an important one. The doctor is responsible for the 

information in the document he signed even though he failed to read, discuss, 

or review it. Appropriate procedures and safeguards were established when the 

refusal of medical treatment form was established to require the medical 

director's signa~re. There had to be a reason that the form required the 

medical director's signature. By requiring that the "refusal of medical 

treatment" form require the medieal director -signature~ the procedures and 

importance of the m~dical director having knowledge of this vital information 

were established. Once the procedure to make certain the medical director is 

informed of this vital information about the patient is established, why would 

24 
we need an expert to say it is negligent of Dr. Adams to not read or make 

certain he is aware of this vital information about his patient? 

The stamp is the doctor's signature. It is his responsibility to specify 

how the stamp may be used an9 have checks and controls to make sure it is 

not being abused and he has all vital information. Medical mistakes in 

hospitals, clinics, prisons or jails can lead to injuries or even death. How can 

any hospital, clinic, prison ·or jail ever establish procedures to reduce this 

danger to patients if the doctor can avoid any responsibility by just saying I do 

·not know what is in the paper I signed, my signature is just an administrative 

tool to keep the paper in. the chart? 

Dr. Adam.s's next excuse is that the nurses should have called him. I 

agree. The question we are faced with is whether the failure of the nurses to 

call the doctor totally excuses his failure to read, discuss or later review the 

document that he signed. Can the doctor avoid all responsibility by saying, 

"blame the nurses, I do not have any responsibility, even if I do not take the 

time or effort to read, _discu~s, or later review the documents that require my 

signature"? 

Further, it is important to keep in mind the vulnerability of the 

population at issue here-the population Dr. Adams neglected. Appellee could 

not merely walk out of the jail to seek a second opinion. He could only seek 

treatment from the SHP nurses working at HCDC and could only depend on 

Dr. Adams-his primary care provider-to _oversee that treatment .. Dr. Adams 

failed to do so, and this failure almost cost Appellee his life. 
When ruling on a motion for summ.ary judgment, this court must view 

the record "in a light most favorable to the party opposing the motion for 

summary judgment and all doubts are to be resolved in his favor." Steelvest . 1 

Inc. v. Scansteel Sero. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991). In looking 

through the lens of this standard, Appellee presented ample evid~nce to survive 

Dr. Adams's motion: Here, "the common knowledge or experience of laymen is 

extensive enough to recognize or to infer negligence from the facts." Jarboe, 

397 S.W.2d at 778. This is not a case where the jury would be required to look 

at complex medical evidence to determine whether Dr. Adams ·breached the 

standard of c::ire; rather, the jury need only determine if Dr. Adams acte~ 

negligently through his willful ignorance of the seventy of Appellee's condition. 

The jury could make this determination based on Dr. Adams' admissions. Id. 

The facts of this case are such that a jury could have decided this case 

without expert opinion based on the doctrine of res ipsa loquitur. The facts are 

sufficient that a jury could find both negligence and causation based on three 

factors: (1) appropriate medical procedures required that the medical director 

(Dr. Adams) sign the "refusal of medical treatment" (this would've required that 

he was aware of the information in the "refusal of medical treatment" in a 

reasonable and timely fashion); (2) Dr. Adams signed the "refusal of medical 

treatment" without any provision or action to ensure that he knew th~ vital 

information contained therein in a reasonable and timely fashion; and (3) Dr. 

Adams admitted that if he had known the information in the "refusal of medical 

treatment," he would have ordered Appellee taken to the emergency room. 

26 
Therefore, I dissent as to the majority's holding regarding Dr. Adams and would 

remand this matter to the trial court with directions to deny Dr. Adams's 

motion for summary judgment. 

COUNSEL FOR APPELLANTS: 

Daniel Garland Brown 

Robert Joseph Shilts · 

Gazak Brown, P.S.C~ 

3220 Office Pointe Place, Suite 200 

Louisville, KY 40220 

COUNSEL FOR APPELLEE: 

. Gregocy Allen BelZley 

Belzley Bathur~t Attorneys 

P.O. Box278 

Prospect, KY 40059 

Daniel Jay .Canon 

Clay, Daniel, Walton, Adams, PLC 

462 South Fourth 'Street 

Meidinger Tower, Suite 101 

Louisville, KY 40202 

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