RENDERED: AUGUST 9, 2024; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2023-CA-0935-MR

JUDY F. SMITH APPELLANT 

v. 

APPEAL FROM GREENUP CIRCUIT COURT

HONORABLE BRIAN CHRISTOPHER MCCLOUD, JUDGE

ACTION NO. 20-CI-00443

KURT F. JAENICKE, M.D. APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: COMBS, A. JONES, AND KAREM, JUDGES.

KAREM, JUDGE: Judy F. Smith (“Smith”) appeals the Greenup Circuit Court’s 

order granting summary judgment in favor of Dr. Kurt F. Jaenicke (“Dr. Jaenicke”) 

in a medical malpractice case. The circuit court determined that Smith had failed 

to present expert testimony supporting her allegation that she suffered an injury 

caused by negligence on the part of Dr. Jaenicke. Finding no error, we affirm.
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FACTUAL AND PROCEDURAL BACKGROUND

On December 3, 2019, Dr. Jaenicke performed surgery on Smith to 

repair a pelvic organ prolapse. During the procedure, Dr. Jaenicke discovered one 

or more “large[,] prolapsed hemorrhoid[s]” and performed a hemorrhoidectomy for 

their removal. 

Thereafter, on November 10, 2020, Smith filed a complaint in the 

circuit court. In her complaint, Smith alleged that Dr. Jaenicke owed her a duty to 

obtain her informed consent before performing the hemorrhoidectomy.

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 She 

further alleged that “as the direct and proximate result of the unauthorized and 

negligently performed hemorrhoidectomy and/or anal surgery, [Smith] sustained 

anal stenosis, scarring and was otherwise seriously and permanently injured and 

damaged.” Finally, Smith further contended that she had incurred and would incur 

medical expenses, lost wages, and earning capacity in the future, and had suffered 

extreme pain, suffering, and mental anguish. 

The litigation in this matter proceeded, and on May 15, 2023 – after 

the period for naming expert witnesses had passed – Dr. Jaenicke filed a motion for 

summary judgment on the basis that none of Smith’s identified experts would offer 

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In its order, the circuit court did not discuss or rule on informed consent as it related to any 

breach of the standard of care in this case. Further, Smith specifically indicates in her brief that 

the appeal “centers solely on the proof of causation[,] i.e., whether medical expert testimony is 

needed to establish that the hemorrhoidectomy caused injury to [Smith].”
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testimony supporting her claims that the hemorrhoidectomy caused her alleged 

injuries at issue in the case. 

Smith opposed the motion for summary judgment, contending that Dr. 

Jaenicke had testified at his deposition that hemorrhoidectomies are painful and 

hurt. Smith further argued that another of her treating physicians, Dr. Jon 

Hourigan, had testified and documented that he performed a surgical evaluation 

and that Smith had sustained a condition similar to anal stenosis with anal scarring 

secondary to the hemorrhoidectomy. As a result, Smith contended that the circuit 

court should not grant summary judgment.

On July 14, 2023, the circuit court granted summary judgment to Dr.

Jaenicke, finding that Smith failed to present expert testimony supporting her 

allegations that she suffered any injury caused by Dr. Jaenicke’s negligence. Thus, 

no genuine issue of material fact existed regarding two essential elements of 

Smith’s negligence claim; causation and damages. This appeal followed.

We will discuss further facts as they become relevant.

ANALYSIS 

1. Standard of Review

Kentucky Rule of Civil Procedure (“CR”) 56.03 authorizes a motion 

for summary judgment “if the pleadings, depositions, answers to interrogatories, 

stipulations, and admissions on file, together with the affidavits, if any, show that 
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there is no genuine issue as to any material fact and that the moving party is 

entitled to a judgment as a matter of law.” A 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, Inc. v. Scansteel Service Center, 

Inc., 807 S.W.2d 476, 480 (Ky. 1991) (citations omitted). “If the litigants are 

given an opportunity to present evidence which reveals the existence of disputed 

material facts and upon the trial court’s determination that there are no such 

disputed facts, summary judgment is appropriate.” Ross v. Powell, 206 S.W.3d 

327, 330 (Ky. 2006). Further, “[w]hether summary judgment is appropriate is a 

legal question involving no factual findings, so the trial court’s grant of summary 

judgment is reviewed de novo.” McKinley v. Circle K, 435 S.W.3d 77, 79 (Ky. 

App. 2014) (citation omitted).

2. Discussion

On appeal, Smith first argues that she did not need expert testimony to 

prove the hemorrhoidectomy caused her injuries. Specifically, she claims it is 

within the “common knowledge and experience of laymen . . . to recognize and 

infer that Dr. Jaenicke caused bodily harm by cauterizing Judy Smith’s flesh and 

making surgical cuts to her body[.]” 

As a starting point for our analysis of Smith’s claims, “[i]t is 

elementary for all tort cases that the plaintiff must establish a duty, breach thereof, 
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causation, and injury.” Saint Elizabeth Medical Center, Inc. v. Arnsperger, 686 

S.W.3d 132, 138 (Ky. 2024). Moreover, as discussed by a panel of this Court, “[i]t 

is well established that in a medical malpractice case, the burden of proof is upon 

the plaintiff to establish the negligence of a physician by medical or expert 

testimony.” Nalley v. Banis, 240 S.W.3d 658, 660-61 (Ky. App. 2007) (citation 

omitted). Indeed, expert testimony is “essential” in establishing a defendant 

deviated from the standard of care and caused some injury to the plaintiff. 

Blankenship v. Collier, 302 S.W.3d 665, 671 (Ky. 2010). 

In some situations, Kentucky courts have recognized an exception to 

the preceding requirement and have permitted the inference of negligence even in 

the absence of expert testimony. Arnsperger, 686 S.W.3d at 138. In Arnsperger, 

the Kentucky Supreme Court noted: 

That a medical malpractice case may, in certain 

circumstances, proceed to trial without expert medical 

testimony when duty, breach, causation, and injury are 

readily apparent within the common knowledge of a jury 

has been frequently described as the “layman’s 

exception” in this case, but that term is a bit of a 

misnomer. The “layman’s exception” is in fact nothing 

other than the application of res ipsa loquitur – the thing 

speaks for itself. 

Id. (citations omitted).

In this case, Dr. Jaenicke argues that Smith did not preserve her res 

ipsa loquitur argument on appeal because she never raised it in a timely manner 
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before the circuit court. Moreover, “[i]t is axiomatic that a party may not raise an 

issue for the first time on appeal.” Sunrise Children’s Services, Inc. v. Kentucky 

Unemployment Insurance Commission, 515 S.W.3d 186, 192 (Ky. App. 2016)

(citations omitted). In other words, “it is the accepted rule that a question of law 

which is not presented to or passed upon by the trial court cannot be raised here for 

the first time.” Hutchings v. Louisville Trust Co., 276 S.W.2d 461, 466 (Ky. 1954) 

(citation omitted). 

In this case, we agree with Dr. Jaenicke that Smith did not adequately 

preserve the res ipsa loquitur argument she raised on appeal. Our examination of 

the record reveals that this is the first time Smith has argued that she was not 

required to present medical expert testimony based on a res ipsa loquitur theory. 

Therefore, we will not discuss this new theory on appeal. 

Smith next argues that the alleged injuries that she claims were caused 

by the hemorrhoidectomy were substantiated by Dr. Jaenicke’s testimony and 

qualified as admissions to negligence. If a defendant physician “makes certain 

admissions that make his negligence apparent[,]” a plaintiff would not have to 

present expert testimony. Blankenship, 302 S.W.3d at 670. 

However, we disagree that any of Dr. Jaenicke’s statements 

throughout the litigation could be characterized as “admissions that make his 

negligence apparent.” Id. While Dr. Jaenicke made general statements regarding 
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the risks and complications of a hemorrhoidectomy, including a discussion about 

how a hemorrhoidectomy can be a painful procedure, Dr. Jaenicke never admitted 

that the hemorrhoidectomy or any negligent performance on his part caused 

Smith’s post-operative complaints. 

Indeed, Smith had a complete pelvic organ prolapse before her 

surgery, a history of constipation, and been diagnosed with a urinary tract infection 

post-operatively. In other words, there were multiple reasons why she may have 

been experiencing post-operative pain and bleeding. Dr. Jaenicke’s deposition 

testimony cannot be read to be an admission that the hemorrhoidectomy was the 

cause of her post-operative or current complaints.

Finally, Smith argues that the medical records and testimony of Dr. 

Jon Stuart Hourigan further substantiated her injuries from the hemorrhoidectomy. 

Smith had begun treatment with Dr. Hourigan in July 2020 due to complaints of 

constipation, occasional incontinence, and anal pain. Dr. Hourigan evaluated 

Smith under anesthesia and anal dilation, noting the following:

Overall, clinical complaints do not seem to be consistent 

with physical examination and operative findings during 

evaluation under anesthesia demonstrate minimal if any

explanation for perianal pain. I cannot clearly determine 

why there is some degree of hypo sensitivity along the 

left perianal skin and increased sensitivity within the anal 

canal. Hemorrhoidectomy site, apparent by surgical scar, 

seems to be ordinary in appearance. Anal rectal tone is 

present. 
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Dr. Hourigan was deposed in January 2023. At that time, he testified that he did 

not intend to give an opinion in this case regarding whether any of Smith’s claimed 

injuries or complaints were related to the hemorrhoid surgery.

Regarding Dr. Hourigan’s evidence, his notes and deposition 

testimony demonstrate that he offered no opinions regarding whether Dr. Jaenicke 

caused injury to Smith when performing the hemorrhoidectomy. Instead, he 

affirmatively ruled out anal stenosis after performing the evaluation under 

anesthesia, documenting in his post-surgical notes that the “superficial scar” seen 

during the evaluation “should not be interpreted as post[-]hemorrhoidectomy anal 

stenosis.” (Emphasis added.) Indeed, his “findings during evaluation under 

anesthesia demonstrate minimal if any explanation for perianal pain.” Finally, he 

conclusively stated in his deposition testimony that he did not intend to give an 

opinion regarding whether any of Smith’s claimed injuries or complaints were 

related to the hemorrhoid surgery, and he did not otherwise connect any of Smith’s 

complaints to the hemorrhoidectomy performed by Dr. Jaenicke.

Thus, without supportive expert testimony establishing the causation 

and damages portions of this medical malpractice action, there was no genuine 

issue upon which relief may be granted, and summary judgment was appropriate.
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CONCLUSION

For the foregoing reasons, we affirm the Greenup Circuit Court’s 

order granting summary judgment in Dr. Jaenicke’s favor.

ALL CONCUR.

BRIEF FOR APPELLANT:

Bert Ketchum

Michael C. Walker

Huntington, West Virginia

BRIEF FOR APPELLEE:

C. Jessica Pratt

Cincinnati, Ohio