RENDERED: NOVEMBER 2, 2017 TO BE PUBLISHED



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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 ofpain and suffering. Appellee primarily asserts thatAdams, as medical director for HCDC, was inattentive to inmate medical needs, and that he failed to adequately instruct thejail's medical staffhow to handle patients that refuse to take medications. Appellee also asserts that Walkup negligently failed to provide thejail nursing staffwitha clear order as to when Appellee shouid have been taken to a hospital emergency room. The trial court entered a summaryjudgment dismissing Appellee's claims againstAdams and Walkup because he had no expert evidence to establish the relevant standards ofcare or to show thatAdams' and Walkup's breach ofthe standard ofcare caused the Appellee's damages. The Court ofAppeals
. reversed the trial court upon its conclusion that the negligent conduct asserted byAppellee fit within the res ipsa loquiturdoctrine 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 ofAppeals 

### and reinstate the sum,maryjudgment granted by


# . the trial court. I. FACTUAL AND PROCEDURAL BACKGROUND Southern Health Partners, Inc. (SHP) contracted to provide health care services to inmates ofHCDC, including the services ofa .i:)hysicia_.n. Pursuant to its contractwith HCDC, SHP employed a registered nurse and several**lice~sed** practical nurses to staffthejail's medical unit around the clock. SHP contracted with Adams to serve as thejail medical director. That contract specifically designated Adams as the primary care physician for all inmates at thejail.

. I .The trial court dismissed the Appellee's claims against thejail nursing staffon grounds ofgovernmental immunity. The Court ofAppeals also reversed thatIuli.ng, but the pending claimsbetweenAppellee and the nurses are not part ofthis appeal. 2Among 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 ofmaking weeklyjail visits to monitor and evaluate the quality of patieiit care. Adams personallyvisited thejail monthly., To facilitate Adams' assent on various medical forms· used at thejail, 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 oftreatment forms. She testified that the use ofthe signature stamp facilitated the medical treatment ofinmates by allowing essential documents to remain with the inmate's medical record, rather than setting them**a~ide** in a stackto be signed by Dr. Adams at his nextjailvisit. 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 staffnurse visited him and noted his · complaints ofabdominal pain, nausea, vomiting, and fever. Appellee reported 3that he had a histocy ofdiverticulitis and that a large portion ofhis colon had been surgically removed. The nurse initiated a course ofthe anti-nausea medication Phenergan and·a restrjcted diet. The next day, a different nurse visited Appellee. On this occasion, he did


# . not specifically complain ofabdominal pain, but he still reported nausea, vomiting, and the fever he had had for three days. The treatment plan approved by the Medical TeamAdministrator, Brenda Brown, R.N.,**prescrib~d** a Phenergan suppository and continuation ofthe special diet. It also directed

. . thatAppellee 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 ofvomiting**an~** constipation for six days. He**reques~ed** an antibiotic and a stool softener. Walkup arrived at thejail the next day
..She diagnosed his condition as diverticulitis and mild dehydration. She·ordered a regimen ofclear liquids for 48 hours, Phenergan, and antibiotics. She left a written order for Appellee to be taken to the emergency room ifhe was "unstable or unable to tolerate fluids." The following afternoon Appellee rejected· the prescribed medications. The attending nurse had him sign a "Refusal ofMedical Treatment and Release ofResponsibility" form and advised him to inform the medical staffifhis vomiting continued. Instead ofnotifying Adams and securing his direct acknowledgement ofAppellee's refusal oftreatment, the nurse**s~ped** his signature t9 the form. No one at thejail contacted Walkup during this time concerningAppellee's medical status. 4For the next two days, Appellee continued to refuse his medication. At each refusal, the nurse completed the standard refusal oftreatment form, stamping itwith Adams' signature without contacting him orWalkup.· On the' third morning, Appellee.was discovered collapsed on the floor ofhis 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 thatAppellee be taken to the emergency room ofthe local hospital. At that point, Brown · informed Walkup thatAppellee had been taken to the hospital, and Walkup informed Adams. Until then, Adams was never made aware of**~ppellee's** condition, or even thatAppellee was an inmate/patient at HCDC. Later, Appellee was transferred to intensive care at the University ofLouisville Hospital where he underwent surgery for a bowel obstruction. Based upon the foregoing events, Appellee brought medical negligence claims againstAdams, Walkup, and the SHP nursing staffat thejail. 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 ofAdams' signature stamp which made it·unnecessary for them to informAdams ofAppellee's condition when Appellee refused his , medication; and 2) W alkup's inadequate instructions to thejail nurses about

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

5During**pr~-trial** discovery, Appellee identified only one potential expert witness, Nurse SusanTurner. Although Turner's opinion found fault in the
care provided for Appellee by thejail nursing staff, she expressed no

### opinio~ critical ofAdams orWalkup. Adams and Walkup moved for summary judgmentbased upon the lack ofevidence critical oftheir conduct. The trial court concluded thatAppellee could not prove liability on the

. . part ofAdams orWalkup without an expert opinion to identify how Adams' and Walkup's conduct breached the standard ofcar<? and caused injury to Appellee
.

. . The Court ofAppeals reversed the trial court's decision based upon its conclusion that whetherAdams orWalkup, or both ofthem, rendereddeficient
care to Appellee under the factual circumstances ofthis case could be determined**~thout** expert opinion.
II. ANALYSIS**A~** 

### A trial court's decision to grant summaryjudgment is subject to de 

### nova appellate review. ·

.The first point ofcontention addressed by the parties to this appeal
concerns the standard ofreview by which we shouldjudge a trial court's decision to grant s_ummaryjudgmentwhen a medical**malpracti~e** claimantfails 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 ofdiscretion" is the applicable standard ofreview. Citing 

### BaptistHealthcare 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

6that the Court ofAppeals gave insufficient deference to the trial court's opinion, which they characterize as an evidentiary ruling traditionally left to the discretjon ofthe trial court. Appellee argues that the issue upon which**~e** trial court granted summaryjudgment is a question oflaw to be reviewed by an appellate court 

### de novo. To keep**th~s** threshold issue in its proper perspective, we should note the comment ofthe 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 ofdiscretion or 

### de novo,

# for ari abuse-of-discretion standard does not mean a mistake oflaw is beyond appellate

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

it.makes an error oflaw
.... 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 ofthose legal prlriciples, and that is inherently a matter oflaw. We generally accord no deference to a trial court's view ofthe 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."

7Although our ultimate decision may be the same under either standard ofreview, we nevertheless clarify the applicable standard here. This case**~ose** from a summaryjudgment 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 summaryjudgment de novo and any factual findings

. 

# . will be upheld ifsupported 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. KentuckyEasterSeals Society, Inc.,· "Appellate review ofa summaryjudgment involves only legal questions and a determination ofwhether.a disputed material issue offact exists. So, we operate under a de novo standard ofreview with no need to defer to the trial court's decision." 413 S.W.3d 901, 905 (Ky. 2013). More specifically pertaining to summaryjudgments based upon the plaintiffs failure to obtain expert medical opinion testimony, we said in 

### Blankenship 

### v. Collierthat "an·appellate court always reviews the _substance of
a trial court's summaryjudgment ruling 

### de novo, i.e., to determine whether the record reflects a geq.uine issue ofmaterial fact." 302 S.W.3d 665, 668-669 (Ky.**20~0).** Our decision in 

### Blankenship clearly recognized that, fundamentally, the lack ofexpert testimony is "truly a failure ofproof [for which] a summary judgment is appropriate." 

### Id. at 668. Whether there is "a failure ofproof," or
as it is sometimes called, insufficient evidence to sustain a particular claim, is
a question oflaw. 

### Lackey v. Commonwealth, 468 S.W.3d 348, 355 (Ky. 2015) 8("The question ofwhether there was sufficient evidence to warrant a thirddegree escape instruction is a question oflaw to be reviewed de novo."). Appellants' argument to the contrary stems from inartful language used in 

### BaptistHealthcare. In 

### BaptistHealthcare, !he trial court deter.mined that testimony ofan expert phlebotomist was an indispensable component ofthe plaintiffs proof. However, instead ofdismissing the case on summaryjudgment for lack of evidence sufficient to create a genuine issue ofmaterial fact, the trial court granted a continuance allowing the plaintiffadditional time to o.btain the essential expertwitness. Id. at 679-680.**Ultimate~y,** the plaintiffwas successful at trial and the defendant appealed, arguing**~at** the trial court erred by failing to grant the motion for summaryjudgment and, alternatively, that the trial court erred in granting the continuance. Id. at 680. Upon review ofthe trial court's failure to grant summaryjudgment, the 

### BaptistHealthcare Court found "no abuse oftrial court discretion in.continuing

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

[thedefendant hospital's] motion for summaryjudgment; or otherreversible. error." Id. at 677. The Court also noted that the "trialjudge has wide discretion to admit or exclude**~vidence** including that.ofexpertwitnesses." Id. at 680-681. Significantly, those references to the abuse ofdiscretion standard do not pertain to the legal question of**wh~ther** the lack ofexpert testimony was
a failure ofproofrequiring·dismissal ofthe plaintiffs claim:



### 9.After examining the issue in light ofKRE 702-705, the 

### BaptistHealthcare Court observed that while "it was notunreasonable for [the plaintiff] to contend that
. . . the principle of 

### res ipsa loquiturapplied 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 ofexpert opinion evidence with an entirely different concept: the 

### sufficiency of evidence needed to sustain.a claim ofprofessional negligel:'lce. Mo"re precisely, when the issue is summaryjudgment,·the question is not whether an expert· opinion is admissible evidence; the question is whether the plaintiffcan possibly demonstrate witho'!,lt expert opinion**testim~ny** the existence of**~**· genuine issue ofmaterial fact as to the defendant's breach ofduty or causation ofdamages, fill:d thereby refute the defendant's**~ontrary** assertion.a KRE 702- 705 deal exclusively with the admissibility ofexpert opinion and have nothing whatsoever to do with the elements ofa 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 ofopinion testimony·under KRE 702-705 is very different from the decision to dismiss a
case oh summaryjudgment for. insufficient evidence, or "a failure ofproof." The former is reviewed under the abuse ofdiscretion standard, but we have

a CR 56.03 ("[Summaryjudgment] shall be rendered forthwith ifthe pleadings,

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

with the affidavits, ifany, showthatthere is no genuine issue as to any material fact and that the moving partyis entitled to a judgment as a matter oflaw.").

. . 10

### ·. consistently held that the fatter is a question oflaw to be reviewed on appeal de
novo.

· Miller v. Eldridgeinvolved 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 summaryjudgment case, and it does not involve the question ofwhether 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 ofdiscretion standards ofreview," id. at 9 

### i 7, nothing in Eldridge lendsitselfto the resolution ofthe issues jn the instant case.4 

### B. Appellants were entitled to summaryjudgment dismissingAppellee's claims against. them. Upon moving for summaryjudgment, Adams and Walkup had the

·burden ofdemonstrating to the trial court thatAppellee's failure to come forth with expert testimony was fatal to his claims against them. Appellee responded

4 In Eldridge, andin cases too numerous to conveniently cite here, this Court and the Court ofAppeals have gratuitouslyrecited byrote that "abuse ofdiscretion is the proper standard ofreview ofa trial court's evidentiaiyrulings." See,for example, Goodyear Ti.re andRubberCo. v. Thompson, 11 S.W.3d 575, 577 (Ky.· 2000). The problem with that boilerplate language is thatthe phrase "evidentiary rulings" captures an extremelybroad and vaguely defined range oftrial court activity. A trial. court's interpretation ofspecific provisions ofthe Kentucky Rules ofEVidence could be called an "evidentiaryruling," butwe have steadfastlyheld that the interpretation of our Rules ofEvidence is an issue oflawto be reviewed on appeal de nopo. SeeMeyers v. Commonwealth, 381S.W.3d280, 283 (Ky. 2012). A trial court's ruling to suppress· criminal evidence because ofa constitutionalviolation is an "evidentiaryruling" but it is also a ruling that on appealis reviewed de novo. See Williams v. Commonwealth, 364 S.W.3d 65, 68 (Ky. 2011). Without a more precise articulation ofthe rule, the bestthat can be said ofitis that some, but not all, "evidentiaryrulings" are reviewed for abuse ofdiscretion. Clearly, some are not. 11to their motion with the argument that under the circumstances ofhis case, no medical expert evidence was necessary. Most medical malpractice claims involve issues of science or professional skill outside the ordinary experiences and range ofknowledge oftypicaljurors andjudges. 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 ofcare and was a proximate cause ofthe damages claimed. 

### See Perkin.S v. Hausladen, 828 S.W.2d 652, 655-656 (Ky. 1992);. Greer's

### Adm'rv. Harrell'sAdm'r, 206 S.W.2d 943, 946 (Ky. 1947); 

### Caniffv. CSXTransportation, 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 trialjudge 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 loquiturcases in which "the common

knowledge or experience oflaymen 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 'thejuzy may reasonably infer both negligence and causation from the mere occurrence ofthe event and the defendant's relation to it."' 

### Blankenship, 302 S.W.3d at 670 (citation omitted)
.. Second, expert opinion is 12not 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 ofcare and so Appellee relies upon 

### res ipsa loquitur- the theory that any reasonable person could reasonably infer negligence from circumstarices ofthe injury; or generally, that the injury could not have occurred btit for the negligence ofAdams orWalkup, or both ofthem. l.· 

### Appellee'sclaimthatAppellantsAdamsand Walkup negligently trained the 

### jail nursingstaff

### couldnotbe sufficiently established without expert opinion testimony. ·It is tin.disputed that Adams was ·never informed ofAppellee'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 ofnegligence on the part ofAdams is that.by allowing nurses to stamp his signature on Appellee's refusal oftreatment form, Adams remained.purposefully**ignor~t** ofAppellee'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 ofthat argument is Appellee's implied assumption that the nurses were instructed that ifthey used the signature stamp on treatment refusal forms, there**w~s** no medical need to contactAdams or Walkup. We find no evidence to support that assumption. The most apparent purpose ofthe doctor's signature, stamped or otherwise, on the refusal oftreatment form is to record the fact that the doctor
was made aware that the patient was not taking the prescribed medication.
13Nothing on the form suggests to an attending nurse that the use ofthe 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 doctorwho 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 ·thatthe nurses were instructed 

### notto contactAdams orWalkup when a patient refused treatment.5 Adams testified that on most ofhis monthly visits to thejail he reminded thejail staff, "Ifyou 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 outAppellee's**r~fusal**·ofmedical 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, seasonednurse practitioners-licensed seasoned nurses. They had been doing general medicine for 

# a long time. They knew what they were doing. Ifthey saw something they didn't like, they should have picked up the phone and called me."

s Nurses atthejail gave deposition testimonythat Brown, R.N., the Medical TeamAdministrator, instructed them to call her, notAdams. Adams testified he was unaware ofthe 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 oftheir.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 ofthe practice ofusing

. 

### . his signature stamp on refusal ofmedical treatment forms, buthe explained: Let's s_ay we diagnose you With tennis elbow and we give ·you

.Motrin and you refuse Motrin. That'sjustnot that important. But

ifyou're refusing an antibiotic for the diverticulitis, that is something.important. And that's clinical decision making. They are well seasoned nurses. Theyknow when they should call.
. .. [Tjhe 

### stamp was not to keep them from being able 

### to call me. The 

### stamp was justused as an administrative tool to keep thepaperin the chart. Ifa custom or protocol ofthe medical profession established a contrary standard for using the signature stamp upon which Adams and Walkup should have.instructed the nurses, it was incumbentupon Appellee to produce it. In

. ' the absence ofsuch evidence, we see no reason to suppose that thejail nursing staffwould fail to contact the doctor;nor any reason to believe that Adams or Walkup should have anticipated the need to train thejail staffon the use ofthe 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 ofAppeals'view ofthis case as**pre~enting** a 

### res ipsa loquitur situation in which no expert testimony is needed. Itwould not



### . . 15

## " be within the common experience ofthe 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 ofcare 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_ofnegligence 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'sclaimthat Walkup was negligent in thepreparation of her orderto the jail nursingstaff

### could notbe established without expert opinion testimony. Appellee asserts that Walkup was negligent because her order directing the nursing staffto transport Appellee to the hospital ifhe 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 itwas, properly instructed the nursing staffand that, given the symptoms· they observed, compliance with

6 The trial court emphasized the need for expert testimonywith respect to Adams' role as ajail medical director and the training duties associated with that position. Ourfocus is onAdams' 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 thatW alkup's order adequately communicated the need to move Appellee to a hospital without further instructions or guidance from Adams orWalkup. He added, "Often times I'll write something and· [attending nurses] will call and say, we're not surewe knew whatyou meant, and I will clarify immediately. So ifthe order was not understood or.ambiguous at all, there should have been a phone call asking forclarification ofthe order." We agree with the trial court's summary disposition ofthis issue. The meaning ofWalkup's order and its application to Appellee's condition is not· something that "any layman is competent to passjudgment and co_nclude from common experience that such things do not·happen ifthere 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 ofher order.
III. CONCLUSION In summary, we conclude that the trial court's decision to grant summaryjudgmentbased upon a failure ofproofis subject to 

### de novo review**~n** appeal. Upon such review, we agree that in the absence ofexpert testimony to the contrary, Appellee's e_vidence failed to create a genuine issue ofmaterial fact as

### to Appellants' breach ofa standard ofcare, and as a matter oflaw,

·17Appellants were correctly granted summaryjudgment. We, therefore, reverse the opinion ofthe Court ofAppeals in this matter and reinstate the trial court's judgment dismissingAppellee's claims againstAdams 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 thatAppellee's claim against Dr. Adams required an expertwitness to survive a motion for summaryjudgment. I disagree. We have accepted two circumstances under which expert testimony is unnecessary in medical cases such as this, pursuantto 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 ofsecuring an expert witness upon the Appelleeand would allow his claim against Dr.·Adams to suryive the motion for summaryjudgment. Southern Health Partners (SHP) contracted with Hardin County to-

. . provide medical services to. the inmates ofthe 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 PractitionerWalkup testified that Dr. Adams onlyvisited HCDC**one~** per month for one to two.hours. Dr. Adams instead delegated the**we~kly** visits required by the terms ofhis contract to Walkup. Walkup was tasked with visiting all sevenjails 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 ofthe**~** 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 oflaymen 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 ofthe six times Appellee 19**~**refused his medication leading up to his eventual collapse and trip to the emergencyroom. The bottom ofthat 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 ofmedical treatment"
. forms. Thus, the nurses stamped Dr. Adams's acknowledgement on the

. .

. "refusal ofmedical 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** ofhis procedures or lack thereof
.. The very existence ofthis form and Dr. Adam.s's failure to have any knowleq.ge ofthe information contained therein clearly demonstrated to the
. juryboth the duty Dr. Adams owed his patients and tpe breach ofthat duty. Obviously, the refusal ofmedication form required the medical director's (Dr. Adam.s's) signature because it was important to the health and safety ofthe patient that he have the information. Dr. Adams's actions allowed thejury to "recognize orinfer neglige_nce" without the need ofan expert witness. 20Due to the use ofthe,signature stamp-and much toAppellee's detriment-Dr. Adams remained unaware ofAppellee'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 concerningAppellee's inability to take the prescribed medications. Ifitwas negligent for the nurses to fail to . inform Dr. Adams;itwould have to be negligent for Dr. Adams to ignore that information on the six separate occasions his signature was affixed to the "refusal ofmedical 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 ifhe had actual knowledge thatAppellee continued to vomit. Dr. Adams answered, "[i]fthey 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 ofmedical treatment" documents. Had Dr. Adams not empioyed the use ofthe stamp in the manner in which he did, and had, instead, signed the documents himself
or hada nurse discuss the patientwith 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 emergencyroom,

. .

. . ·Appellee was transferred to the University ofLouisville 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 ofage at the time and had previously had several inches ofhis colon removed due to**div~rticulitis)** suffered respiratory failure, requiring intubation, and had bilateral chest tubes placed after both ofhis 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 ofmedical 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 ofa 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 ofa signature stamp would be perfectly acceptable. One example would be ifDr. Adams had given standing orders about circumstances which, if present, called for the use ofthe stamp. For instance, ifhe 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 22appropriate. Likewise, had Dr. Adams told the nursing staffover the phone to stamp the refusal ofmedical treatment after being advised ofthe condition of the patient, Dr. Adams would have probably met his duty ofcare. .In another scenario that would likely comport with Dr. Adams's duty, he could have authorized the use ofthe stamp for certain time intervals, and then had the
nurses contact him with the details ofthe documents within a reasonable time. However, none ofthese things happened. Instead ofa**re~sonable** delegation with oversight, Dr. Adams signed the "refusal ofmedical treatment" and

. . ignored the information contained therein. Dr. Adams lacked knowledge ofAppellee'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 ofa signature stamp in the administration ofan escrow

account. Ifit is gross negligence for an attorney to fail to properly supervise the use ofher.signature stamp in the administration ofmere money, how much
more so would a doctor be grossly negligent in failing to properly supervise the
use ofhis signature stamp in a matter oflife 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 

### 23inmates ofHCDC 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. Hejust failed to use any ofthem·or to set up any procedures regarding its use. Hejust 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 ofthe law is no excuse"; neither is a doctor's willful ignorance ofhis patients' medical

. ' conditions. Ultimately, Dr. Adams failed to follow the terms ofhis 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 ofmedical 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. Byrequiringthat the "refusal ofmedical treatment" form require the medieal director**-signature~** the procedures and importance ofthe**m~dical** director having knowledge ofthis vital information
were established. Once the procedure to make certain the medical director is informed ofthis vital information about the patient is established, why would 

### 24we need an expert to say it is negligent ofDr. Adams to not read or make certain he is aware ofthis 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 orjails can lead to injuries or even death. How can any hospital, clinic, prison ·orjail ever establish procedures to reduce this danger to patients ifthe doctor can avoid anyresponsibility byjust saying I do ·not know what is in the paper I signed, my signature isjust 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 ofthe 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 ifI do not take the time or effort to read,**_discu~s,** or later review the documents thatrequire my signature"? Further, it is important to keep in mind the vulnerability ofthe population at issue here-the population Dr. Adams neglected. Appellee could not merely walk out ofthejail 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 costAppellee his life.When ruling on a motion for summ.aryjudgment, this court mustview the record "in a light most favorable to the party opposing the motion for summaryjudgment 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 ofthis standard, Appellee presented ample**evid~nce** to survive Dr. Adams's motion: Here, "the common knowledge or experience oflaymen is extensive enough to recognize or to infer negligence from the facts." 

### Jarboe, 397 S.W.2d at 778. Thisis not a case where thejurywould be required to look at complex medical evidence to determine whether Dr. Adams·breached the standard ofc::ire; rather, thejuryneed only determine ifDr. Adams**acte~** negligently through his willful ignorance ofthe seventy ofAppellee's condition. Thejury could make this determination based on Dr. Adams' admissions. Id. The facts ofthis 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 ofmedical treatment" (this would've required that he was aware ofthe information in the "refusal ofmedical treatment" in a reasonable and timely fashion); (2) Dr. Adams signed the "refusal ofmedical 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 ifhe had known the information in the "refusal ofmedical treatment," he would have orderedAppellee taken to the emergencyroom. 26Therefore, I dissent as to the majority's holding regarding Dr. Adams and would remand this matter to the trial courtwith directions to deny Dr. Adams's motion for summaryjudgment.

COUNSEL FOR APPELLANTS: Daniel Garland Brown RobertJoseph Shilts · Gazak Brown,**P.S.C~** 3220 Office Pointe Place, Suite 200 Louisville, KY 40220 COUNSEL FORAPPELLEE:

.Gregocy Allen BelZley Belzley**Bathur~t** Attorneys P.O. Box278 Prospect, KY 40059 DanielJay.Canon Clay, Daniel, Walton, Adams, PLC 462 SouthFourth 'Street Meidinger Tower, Suite 101 Louisville, KY 40202

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