RENDERED: JANUARY 6 , 202 3 ; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth of Kentucky Court of Appeals

NO. 2022

- CA

- 0140

- MR

LEILA SALISBURY, AS EXECUTRIX OF THE ESTATE OF HOLLY BUCKNER SALISBURY APPELLANT

v. APPEAL FROM FAYETTE CIRCUIT COURT

HONORABLE THOMAS L. TRAVIS, JUDGE

ACTION NO. 19

- CI

- 03000

SCOTT ROTH, MD; HEATHER FROHMAN

- SINNER, MD; HENRIK O. BERDEL, MD; KYLE M. BESS, MD; SHYANIE KUMAR, M D ; UK HEALTHCARE; UNIVERSITY OF KENTUCKY; AND UNIVERSITY OF KENTUCKY MEDICAL CENTER APPELLEES

OPINION AFFIRMING
**   **  **
BEFORE: CETRULO, COMBS, AND GOODWINE, JUDGES. GOODWINE, JUDGE: Leila Salisbury, as executrix of the estate of Holly Buckner Salisbury (“estate”) appeals from an order of the Fayette Circuit Court- 2

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denying the estate’s motion to file a second amended complaint to add Scott Roth, MD (“Dr. Roth”) as a defendant. The circ uit court found the estate’s claims against Dr. Roth were time barred. After careful review, finding no error, we
affirm. The circuit court summarized the background of this case as follows:

In this medical malpractice action, the Plaintiff alleges that the Decedent, Holly Salisbury [(“Holly”)] , suffered iatrogenic injuries to major blood vessels during two separate procedures conducted at the University of Kentucky. The first surgery, performed under the direction of Dr. Roth, was one for an elective hernia repair, which occurred at Good Samaritan Hospital on July 24, 2018. During the course of that surgery, the Decedent’s gastric artery was injured, resulting in significant blood loss. Due to the loss of blood, the Decedent’s body te mperature began to drop, prompting Chandler Medical Center providers under the direction of Henrik Berdel, M.D., and Heather Frohman

- Sinner, M.D., to place a catheter in an attempt to warm her up. A complication in the placement led to an injury to the De cedent’s left iliac vein. Ms. Salisbury passed away four days later, on July 28, 2018. The Plaintiff filed her Complaint on August 16, 2019, and her Amended Complaint on August 19, 2019. Dr. Roth, who injured the Decedent’s gastric artery during the elective hernia repair, was not named as a party in these initial pleadings. According to the Plaintiff, although it was known that Dr. Roth was responsible for the injury to the Decedent’s gastric artery, he was not originally named as a Defendant becaus e such injuries are known and acceptable complications during hernia repairs, and his operative report describes him recognizing the injury and attempting to properly manage it.- 3

- The Plaintiff now wishes to add Dr. Roth as a party because her experts believ e that his August 20, 2021, deposition testimony contradicts the description in his operative report. Specifically, the operative report explains that his repair of the artery resulted in minimal blood loss. However, the Plaintiff’s experts concluded tha t Dr. Roth improperly staunched the bleeding artery during the hernia repair by stapling only a branch vessel of the arter y , which then necessitated a second attempt to fix the artery. As a result of this alleged breach of the standard of care, the Plaint iff asserts that the Decedent lost approximately one

- half of her blood volume before her transfer to Chandler Medical Center

. R ecord (“R.”) at 461

- 62 (footnote omitted)

.

The estate filed a CR 1 15.01 motion for leave to file a second amended complaint se eking to add Dr. Roth as a party. Dr. Roth entered a special appearance to argue the second amended complaint was time barred. The circuit court heard oral argument on the motion. At the conclusion of the hearing, the circuit court permitted the parties to file supplemental briefs and took the matter
under advisement

.

On December 1 5 , 2021, the circuit court entered an order denying the estate’s motion to file a second amended complaint. The circuit court found as follows : The Court finds that there are no genuine issues of

material fact even when considering the facts in a light most favorable to the Plaintiff. Prior to the expiration of the statute of limitations, the Plaintiff possessed

1 Kentucky Rules of Civil Procedure.- 4

- sufficient information putting her on notice of a possible cl aim against Dr. Roth. His identity was clearly known as the surgeon who performed the hernia operation and who, in the course thereof, cut the gastric artery. The medical records were in Plaintiff’s possession, and CR 27.01(1) would have afforded Plainti ff an opportunity to depose Dr. Roth before the statute of limitations expired. There is no claim of concealment, deception, or other applicable circumstances recognized by the Appellate Court that would toll the statute of limitations utilizing the “disc overy rule.”
R. at 466. On appeal, the estate argues its claims against Dr. Roth were not time
barred for three reasons: (1) the discovery rule applies; (2) it was entitled to rely on the expert opinions it obtained as required by KRS 2 411.167 and ethi cal
standard s ; and (3) the statute of limitations is a factual issue precluding dismissal before even allowing the estate to file a second amended complaint.

In reviewing a denial of a motion to amend the complaint, we apply the following standard of review:

A trial court may deny the right to amend a pleading on the basis of “the futility of the amendment itself,” which essentially equates to a failure to state a claim upon which relief could be granted. Bank One, Kentucky, N.A. v. Murphy , 52 S.W.3d 540 (Ky. 2001). Ultimately, a trial court is vested with the discretion to determine whether to allow an amended pleading, and its decision will not be disturbed absent an abuse of that discretion. Lambert v. Franklin Real Estate Co. , 37

2 Kentucky Revised Statutes.- 5

- S.W.3d 770, 779 (Ky. App. 2000). Insight Kentucky Partners II, L.P. v. Preferred Automotive Services, Inc

. , 514 S.W.3d 537, 555 (Ky. App. 2016).

First, the estate argues, under the discovery rule, it could not have known of Dr. Roth’s potential liability until his August 20, 202 1, deposition. Generally, medical malpractice actions must be filed “within one (1) year after the
cause of action accrued [

. ] ” KRS 413. 140 (1) (e). However, when a prospective plaintiff “ dies before the expiration of the time limited for its commencement and
the cause of action survives , ” the estate administrator may file an action on behalf
of the decedent “after the expiration of that time, if commenced within one (1) year after the qualification of the representative.” KRS 413.180(1).

Dr . Roth performed Holly ’s initial surgery on July 24, 2018, and she died on July 28, 2018. The executrix was appointed on September 5, 2018. Thus, the estate was required to file any medical malpractice claims arising out of Holly’s death by September 5, 2019.

The estate argues its claims are still timely under the discovery rule in KRS 413.140(2), 3 which provides: “the cause of action shall be deemed to accrue

3 KRS 413.140(2) was held to be unconstitutional by McCollum v. Sisters of Charity of Nazareth Health Corp. , 799 S.W.2d 15, 17

- 18 (Ky. 1990), to the extent it placed a five

- year cap on an individual’s ability to bring a negligence or malpractice action against those professionals listed in KRS 413.140(1)(e).- 6

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at the time the injury is first discovered or in the exercise of reasonable care should
hav e been discovered [ , ] ” and the action must be filed within five years of when the negligence occurred. The estate asserts that it could not have known of Dr. Roth’s potential liability until his August 20, 2021 , deposition , which he gave as a non
party fac t witness. The estate admits it “knew that Dr. Roth harmed or damaged Holly’s gastric artery during the hernia repair surgery. But knowledge of ‘harm’ is not what is required to trigger the statute of limitations. The [ e ] state did not and
could not know that Dr. Roth’s actions amounted to a legal injury.” Appellant’s
B rief at 10

- 11. The estate further claims it relied on medical expert opinion in initially determining Dr. Roth’s actions were not below the standard of care.

However, the estate’s interp retation of the discovery rule is incorrect.

“ [ A ] cause of action will not accrue under the discovery rule until the plaintiff discovers or in the exercise of reasonable diligence should have discovered not only that he has been injured but also that his injury may have been caused by the defendant’s conduct.” Vannoy v. Milum , 171 S.W.3d 745, 749 (Ky. App. 2005) (quoting Louisville Tr. Co. v. Johns

- Manville Products Corp. , 580 S.W.2d 497, 501 (Ky. 1979)). The relevant question in determining whether the discovery rule applies is: “Does the statute start to run when the surgery patient discovers the sponge or when an attorney tells the patient that legal action lies against the surgeon? Obviously the answer must be with the discovery that a wrong has be en- 7

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committed and not that the party may sue for the wrong.” Conway v. Huff , 644 S.W.2d 333, 334 (Ky. 1982). Additionally, in cases where the injured person dies, our Supreme Court has held that a cause of action accrues at the date of death because “deat h is the injury that put appellants on notice to investigate.” McCollum v. Sisters of Charity of Nazareth Health Corp. , 799 S.W.2d 15, 19 (Ky. 1990). The estate’s argument is contrary to settled Kentucky case law. The estate admits it knew Dr. Roth inju red Holly when he damaged her artery during the initial surgery, and she tragically died a few days later. That is all the discovery rule requires for a claim to accrue. Thus, the circuit court correctly determined the estate’s claims against Dr. Roth we re time barred.

Second, the estate argues it was entitled to rely on the expert opinions obtained as required by KRS 411.167 and ethical standard s
. The estate asserts its initial August 2019 complaint was subject to KRS 411.167, which requires plaintiffs to “file a certificate of merit with the complaint” declaring that a medical expert believes “there is reasonable basis to commence the action [

. ] ” KRS
411.167 (1) and (2)(a) . Only one certificate of merit is “ required for an action even if more than one (1) defendant has been named in the complaint or is subsequently
named. ” KRS 411.167(3)

.- 8

- The estate asserts it consulted with two qualified exper ts who opined the injury to Holly’s gastric artery was an unfortunate but known complication and
was not a breach of the standard of care . The estate argues it had the right to rely on the experts’ affidavits in declining to initially name Dr. Roth as a d efendant.

Dr. Roth points out that the estate did not submit the expert ’s affidavit until it filed a CR 59.05 motion after the circuit court entered an order denying the estate’s motion to amend the complaint. “ A party cannot invoke CR 59.05 to raise

a rguments and to introduce evidence that should have been presented during the proceedings before the entry of the judgment. ” Gullion v. Gullion , 163 S.W.3d 888, 893 (Ky. 2005) . Unfortunately, because the estate did not file the expert
affidavits with the motion to amend the complaint, the circuit court could not
consider them.

As this novel argument is not properly before us, we cannot pass on the question of how KRS 411.167 affects the accrual of a medical malpractice
claim when a qualified expert det ermines there is not a reasonable basis to
commence an action. In this case, KRS 411.167(3) arguably would have applied, rendering only one certificate of merit necessary even though there are multiple
defendants. So even if this issue were properly befo re us, this provision would likely have also prevented us from passing on the accrual qu estion.- 9

- Finally, the estate argues the statute of limitations is a factual issue precluding dismissal before allowing the estate to file a second amended complaint. The estate’s second amended complaint was obviously futile and failed to state a claim on which relief could be granted as its claims against Dr. Roth were
time barred. S ee Insight Kentucky Partners II, L.P. , 514 S.W.3d at 555. The circuit court did not abuse its discretion in denying the estate’s motion to amend the complaint.

Under this final argument, the estate makes an underdeveloped, unpreserved argument that Dr. Roth fraudulently concealed his negligence by way
of his a lleged incomplete operative reports. As this argument is unpreserved and conclusory, we decline to address it.

For the foregoing reasons, we affirm the order of the Fayette Circuit
Court.

ALL CONCUR.- 10

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BRIEF S FOR APPELLANT:
Kevin C. Burke Jamie K. Neal Louisville, Kentucky James M. Bolus, Jr. Louisville, Kentucky BRIEF FOR APPELLEE S : William E. Thro Lexington, Kentucky Margaret M. Pisacano Lexington, Kentucky Bradley A. Case Stephen J. Mattingly Louisville, Kentucky