RENDERED: JANUARY 6, 2023; 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NOT TO BE PUBLISHED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, MD; 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 
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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 circuit 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 temperature 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 

Decedent’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 because 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.
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The Plaintiff now wishes to add Dr. Roth as a 

party because her experts believe 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 

that Dr. Roth improperly staunched the bleeding artery 

during the hernia repair by stapling only a branch vessel 

of the artery, which then necessitated a second attempt to 

fix the artery. As a result of this alleged breach of the 

standard of care, the Plaintiff asserts that the Decedent 

lost approximately one-half of her blood volume before

her transfer to Chandler Medical Center.

Record (“R.”) at 461-62 (footnote omitted).

The estate filed a CR1 15.01 motion for leave to file a second 

amended complaint seeking 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 15, 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.
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sufficient information putting her on notice of a possible 

claim 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 Plaintiff 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 “discovery 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 KRS2 411.167 and ethical 

standards; 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.
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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, 2021, 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).
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at the time the injury is first discovered or in the exercise of reasonable care should 

have 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 nonparty fact 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 

Brief 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 interpretation 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 been 
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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 “death 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 injured 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 were time barred. 

Second, the estate argues it was entitled to rely on the expert opinions 

obtained as required by KRS 411.167 and ethical standards. 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). 
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The estate asserts it consulted with two qualified experts 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 defendant. 

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 

arguments 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 determines 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 before us, this provision would 

likely have also prevented us from passing on the accrual question.
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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. See 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 alleged 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.
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BRIEFS FOR APPELLANT:

Kevin C. Burke

Jamie K. Neal

Louisville, Kentucky

James M. Bolus, Jr.

Louisville, Kentucky

BRIEF FOR APPELLEES:

William E. Thro

Lexington, Kentucky

Margaret M. Pisacano

Lexington, Kentucky

Bradley A. Case

Stephen J. Mattingly

Louisville, Kentucky