RENDERED: JULY 12, 2024; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2023-CA-0507-MR

DAVID ADAMS APPELLANT 

v. 

APPEAL FROM OLDHAM CIRCUIT COURT

HONORABLE JERRY CROSBY, II, JUDGE

ACTION NO. 19-CI-00177

DR. JAWED NASIM APPELLEE 

OPINION

REVERSING AND REMANDING

**   **  **

BEFORE: CALDWELL, EASTON, AND TAYLOR, JUDGES.

CALDWELL, JUDGE: David Adams (Adams) appeals from a summary judgment 

granted in favor of Dr. Jawed Nasim (Dr. Nasim) on a medical malpractice claim. 

The circuit court concluded that Nasim was entitled to judgment because Adams 

could not establish proximate cause at trial. After our review, we reverse and 

remand for further proceedings.
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FACTS

On September 8, 2017, Adams was discharged from Norton 

Brownsboro Hospital. Three days prior, after presenting to the emergency 

department, he had been admitted with a diagnosis of Community Acquired 

Pneumonia. During his hospital stay, Adams was treated with two antibiotics and 

his condition appeared to be improving. Upon his discharge, Adams was 

prescribed a different antibiotic called Levaquin by Dr. Nasim. Adams took the 

medication as prescribed. Rather than continued improvement, Adams 

experienced complications and ailments he would come to attribute to the 

Levaquin prescription. 

Adams filed a medical malpractice suit against Dr. Nasim on March 

14, 2019. An Amended Complaint was filed January 10, 2020. Adams’ suit

alleged Dr. Nasim held himself out to the public as a licensed physician and/or 

infectious disease specialist and Adams had reasonably relied upon Dr. Nasim’s 

expertise for competent treatment. The complaint further alleged, after being bedridden for several months with worsening symptoms, Adams learned he was 

experiencing an adverse reaction to Levaquin. On March 15, 2018, Adams was 

informed he had lost 50% of his eyesight, as well as experiencing neuropathy in his 

legs, hands, and hips, as a result of taking Levaquin. Adams alleged a breach of

the standard of care on the part of Dr. Nasim in prescribing Levaquin rather than 
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an alternate, less dangerous medication. He also alleged Dr. Nasim failed to 

inform him of the risks of taking Levaquin − another breach of the standard of 

care.

Discovery in the case commenced and a pretrial scheduling order was 

entered on February 16, 2022. Adams timely filed an expert witness disclosure on 

April 1, 2022, identifying Dr. Pamela Noel, M.D., M.P.H., as his sole expert 

witness. Dr. Noel is a physician who practices in Tampa, Florida, specializing in 

internal medicine and the treatment of infectious diseases. 

Dr. Nasim, by counsel, took Dr. Noel’s deposition on May 22, 2022. 

During her deposition, Dr. Noel affirmed her opinion, indicated in Adams’ expert 

disclosure, that Dr. Nasim breached the standard of care by not providing sufficient 

information to Adams on the risks of Levaquin.1 Dr. Noel also indicated her 

opinion that prescribing Levaquin to Adams was, itself, a breach by Dr. Nasim in 

the standard of care. Counsel for Dr. Nasim expressed surprise at this standard of 

care opinion and discussion of its absence from the pre-trial disclosure ensued. 

This was followed by inquiry as to whether Dr. Noel held any other opinions not

1 Dr. Nasim asserted to the trial court that Adams’ expert witness disclosure focused only on 

allegations of lack of informed consent and that the scope of Dr. Noel’s opinions expressed in 

the deposition exceeded the scope of opinions identified in the expert witness disclosure. 

However, any differences between the scope of her opinions indicated in the expert witness 

disclosure versus those expressed in her deposition were not a primary focus of either party’s 

appellate briefs. And neither party substantively argued any issues about informed consent with 

citations to supporting legal authority in their appellate briefs. 
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indicated in the disclosure. When asked specifically whether she would testify as 

to causation, Dr. Noel affirmed she held the opinion Levaquin had caused Adams’ 

optical neuropathy.

After disclosing the causation opinion during her testimony, Dr. Noel 

was challenged specifically about whether, as an infectious disease specialist, she 

was qualified to render a causation opinion on a condition within the realm of 

ophthalmology. Discussion in this manner was extensive and a long series of 

inquiries on the subject was presented to Dr. Noel. Her response to this line of 

questioning was, at times, equivocal.

On one occasion, she responded to the inquiry: “Q. Are you going to 

provide an opinion, within reasonable degree of medical probability, that Levaquin 

was a substantial factor in causing injury to Mr. Adams? A. Yes.” At another 

juncture: “Q. I think we’re going in circles. My question was, are you able to 

state that Levaquin was a substantial factor in causing his optic neuropathy? A.

No.” More detailed testimony in Dr. Noel’s deposition, prior and subsequent to 

these two inquires, also occurred, as will be discussed infra. 

Following the deposition of Dr. Noel, Dr. Nasim disclosed two expert 

witnesses on August 19, 2022 – a physician with a specialty in internal medicine 

and infectious disease, as well as a physician who specialized in ophthalmology. 

Although it appears depositions for these experts were scheduled, they did not 
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occur. Dr. Nasim moved for Summary Judgment on November 7, 2022. Adams 

filed a responsive brief and Dr. Nasim followed with a reply brief. Oral arguments 

on the motion occurred. In response to the circuit court inquiring as to passages of

Dr. Noel’s deposition referenced by Adams, the entirety of the deposition was 

tendered to the circuit court.

After reviewing the parties’ briefs and Dr. Noel’s deposition 

testimony, the trial court entered a written order granting Dr. Nasim’s motion for 

summary judgment and dismissing Adams’ medical malpractice suit. The trial 

court concluded that, during the deposition testimony of Dr. Noel, she “all but 

conceded she was not qualified, as an expert witness, to offer an opinion on the 

required element of causation of Plaintiff’s alleged injuries. Therefore, no genuine 

issue of material fact exists as to the element of causation. As such, Plaintiff’s 

medical negligence claims against Dr. Nasim fails as a matter of law.”

Adams filed a motion pursuant to CR2 59.05 requesting that the trial 

court set aside its order granting summary judgment. The trial court denied the 

motion to set aside the summary judgment. Adams then timely filed this appeal. 

2 Kentucky Rules of Civil Procedure.
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ANALYSIS

Applicable Standards of Review

Adams asserts he is appealing from the denial of his CR 59.05 motion 

as well as the grant of summary judgment in Dr. Nasim’s favor. Some authority 

indicates that an order denying CR 59.05 relief is not a final and appealable order. 

See Ford v. Ford, 578 S.W.3d 356, 365 (Ky. App. 2019). Assuming denial of CR 

59.05 relief is final and appealable, precedent indicates the applicable standard of 

review is abuse of discretion. See id. at 365-66. 

In any event, our focus is naturally on the merits of the underlying 

summary judgment granted since the denial of the CR 59.05 motion did not alter it. 

See id. at 366 (construing purported appeal from an order denying CR 59.05 relief 

as an appeal from the underlying judgment since the denial of CR 59.05 relief did 

not alter the underlying judgment). 

Reviewing the underlying judgment granting summary judgment, we 

are to determine “whether the trial court correctly found that there were no genuine 

issues as to any material fact and that the moving party was entitled to judgment as 

a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996); CR 

56.03. In doing so, we apply the non-deferential de novo standard of review. See 

Adams v. Sietsema, 533 S.W.3d 172, 177 (Ky. 2017) (granting summary judgment 

is a legal rather than factual determination subject to de novo review). When 
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ruling on a summary judgment motion, we keep in mind the trial court’s obligation 

to construe the evidence in the light most favorable to the party opposing summary 

judgment. See Andrew v. Begley, 203 S.W.3d 165, 169 (Ky. App. 2006) (“In 

considering a motion for summary judgment, the court must view all the facts and 

inferences drawn therefrom in the light most favorable to the party opposing the 

motion, and all doubts are to be resolved in his or her favor.”). 

Expert Testimony About Causation is Generally Required to Prove Medical 

Malpractice Claims

Kentucky precedent makes clear that expert testimony is generally 

required to prove medical malpractice. See Blankenship v. Collier, 302 S.W.3d

665, 675 (Ky. 2010) (“[A] plaintiff bringing a typical medical malpractice case is 

required by law to put forth expert testimony to inform the jury of the applicable 

medical standard of care, any breach of that standard and the resulting injury.”).

Expert testimony is typically essential to establish the element of 

causation in medical negligence particularly: 

“It is beyond dispute that causation is a necessary 

element of proof in any negligence case.” Baylis v. 

Lourdes Hosp., Inc., 805 S.W.2d 122, 124 (Ky.1991). 

“[I]n most medical negligence cases, proof of causation 

requires the testimony of an expert witness because the 

nature of the inquiry is such that jurors are not competent 

to draw their own conclusions from the evidence without 

the aid of such expert testimony.” Id. (Footnote omitted); 

see also Andrew v. Begley, 203 S.W.3d 165, 170 (Ky.

App. 2006). Thus, in order “[t]o survive a motion for 

summary judgment in a medical malpractice case in 
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which a medical expert is required, the plaintiff must 

produce expert evidence or summary judgment is 

proper.” Andrew, 203 S.W.3d at 170.

Rogers v. Integrity Healthcare Services, Inc., 358 S.W.3d 507, 511-12 (Ky. App. 

2012) (footnote omitted). 

To support a finding of the element of causation expert testimony 

must be expressed in terms of reasonable medical probability:

Under established Kentucky law, proximate causation is 

a necessary element of a medical malpractice claim; the 

complainant must demonstrate that the medical 

professional’s breach of the standard of care was a 

proximate cause of the complainant's injury. See Baylis 

v. Lourdes Hosp., Inc., 805 S.W.2d 122, 124 (Ky. 1991) 

(citations omitted). To be the proximate cause of the 

injury, the conduct in question must be a substantial 

factor in causing the injury. See Bailey v. North 

American Refractories Co., 95 S.W.3d 868, 871 (Ky. 

App. 2001).

Ashland Hospital Corporation v. Lewis, 581 S.W.3d 572, 577 (Ky. 2019).

Expert testimony which satisfies the causation element “must indicate 

that an alleged negligent act probably caused the injury and that a nexus between 

the alleged act and the injury is not merely a speculative possibility.” Richmond v. 

Hunt, 596 S.W.3d 103, 106 (Ky. App. 2019) (citing Jarboe v. Harting, 397 S.W.2d 

775 (Ky. 1965); Jackson v. Ghayoumi, 419 S.W.3d 40 (Ky. App. 2012); BrownForman Corp. v. Upchurch, 127 S.W.3d 615 (Ky. 2004); Turner v. 

Commonwealth, 5 S.W.3d 119 (Ky. 1999)). However, precedent also stresses “that 
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substance should prevail over form and that the total meaning, rather than a wordby-word construction, should be the focus of the inquiry.” Baylis, 805 S.W.2d at 

124 (citing Walden v. Jones, 439 S.W.2d 571 (Ky. 1968); Morris v. Hoffman, 551 

S.W.2d 8 (Ky. App. 1977)). 

The Testimony of Adams’ Medical Expert Created a Genuine Issue of Fact as 

to Causation of Adams’ Optical Neuropathy

Upon reviewing the deposition testimony of Dr. Noel, Adams’ 

medical expert, and applying these standards, we cannot agree with the trial court’s

conclusion Dr. Noel’s testimony regarding her qualifications warranted summary 

judgment.

The trial court described deposition testimony as establishing that Dr. 

Noel “could not provide expert testimony that Levaquin was a substantial factor in 

causing [Adams’] vision loss.” The trial court quoted the following testimony:

Q And specifically what injury are you going to tell a 

jury he suffered due to Levaquin?

A So I believe the optic neuropathy that he had because 

Levaquin – one of the adverse reactions potentially is 

neuropathy. So, I believe his optic neuropathy was likely 

– that Levaquin likely attributed to his neuropathy in the

eye.

Q Did the Levaquin – so was the Levaquin a substantial 

factor in causing the neuropathies in his eyes?

A The best that I can say is that it contributed to it. I 

can’t measure that.
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Q Why not?

A There is no way that I can quantify it. What 

percentage, I just – there is no way I can do that.

Q So you’re unable to state that the taking of Levaquin 

was a substantial factor in causing his optic 

neuropathies?

A So it’s just based on a timeline. I don’t have any 

records of him having visual loss from neuropathy prior 

to him taking the Levaquin. And so, because his 

symptoms when he presented to the ophthalmologist, he 

stated that his symptoms started his Visual loss started 

when he after he had completed the course of his 

Levaquin and so I don’t have any other basis to believe 

that he already had Significant neuropathy causing visual 

loss prior to taking Levaquin.

Q I think we’re going in circles. My question was: Are 

you able to state that Levaquin was a substantial factor in 

causing his optic neuropathy?

A No.

However, elsewhere in her deposition, Dr. Noel responded affirmatively to 

questions regarding whether Levaquin was a substantial factor in causing optical 

neuropathy to Adams.

The other section of Dr. Noel’s testimony highlighted by the trial 

court was, again, responsive to a series of questions challenging whether, as an 

infectious disease specialist, she was qualified to opine on causation of optical 

neuropathy. The trial court described that Dr. Noel “noted as she was not an 

ophthalmologist, she stated she did not know how to answer that question.”
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However, the testimony which immediately followed offered explanation of why 

Dr. Noel found counsel’s questioning difficult to answer. Dr. Noel additionally

affirmed having the opinion Levaquin was a substantial factor in causing Adams’ 

optical neuropathy. Within this same testimony, there is also contained an 

argument her expertise and experience in the matter of antibiotic treatment, as an 

infectious disease specialist, did qualify her to testify on the matter of causation:

Q. Within the course of your specialty whether you’re 

going to come to Louisville Kentucky to provide an 

opinion that the taking of Levaquin was a substantial 

factor in causing an injury to Mr. Adams?

A. Yeah. The reason why I struggle with that question 

was because I deal with antibiotics obviously every day 

of my life, right? So, when an antibiotic causes adverse 

reaction, because I manage patients with antibiotics, I 

think I have the expertise to provide an opinion as to 

whether or not that antibiotic caused that injury. 

Now, if for example he had an antibiotic that caused him 

to have an arrhythmia and that antibiotic is known to do 

that, but I’m not a cardiologist, but he’s on an antibiotic 

that can do that do you see what I’m saying? So, to say 

that I’m not qualified to say that Levaquin caused an 

injury that I know can be a potential adverse reaction to 

that antibiotic, even if I’m not a cardiologist this 

antibiotic causes arrhythmia, I think I can say that as an 

infectious disease physician who manages patients with 

antibiotics. 

This testimony showed Dr. Noel was, at times, resolute as to her 

infectious disease specialty being adequate to qualify her to testify regarding 

Adams’ optical neuropathy:
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And so, in this case I think I can be confident in saying 

that his taking Levaquin did cause potential harm to him 

even though the harm wasn’t an infection because I’m an

infectious disease physician. So that’s why I’m 

struggling with that question because I think I can 

provide an opinion that Levaquin did cause him harm.

Q Are you going to provide an opinion within a 

reasonable degree of medical probability that Levaquin 

was a substantial factor in causing injury to Mr. Adams?

A Yes.

Q Tell us what ophthalmology training you have had. 

A I have not had any ophthalmology training.

Reviewing the deposition as a whole, despite some equivocations, Dr. 

Noel did consistently confirm she held the professional opinion that taking 

Levaquin probably caused Adams’ optical neuropathy. She opined “that Levaquin 

likely attributed to his neuropathy in the eye.” This affirmation continued through 

the course of the deposition. Answering the inquiry “[a]nd more specifically what 

injury to his eyes do you claim the Levaquin caused?” She answered: “I believe 

his worsening visual changes came from the optic neuropathy.” 

In fact, it appears essentially undisputed that Dr. Noel, in her 

deposition, expressed her professional opinion that Levaquin was, more likely than 

not, the cause of Adams’ optical neuropathy. Dr. Nasim appears to have 

acknowledged as much when moving the circuit court for summary judgment. He 

instead argued: 
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Dr. Noel is qualified to provide opinions regarding the 

standard of care as it pertains to the care and treatment of 

infectious diseases. She is not qualified to offer an 

opinion regarding the causation of Plaintiff’s alleged eye 

injury (i.e., “he had lost 50% of his eyesight.”). For 

Plaintiff to prove a claim of medical negligence against 

Dr. Nasim, Plaintiff must provide expert testimony from 

a qualified expert who will opine that the Levaquin Dr. 

Nasim prescribed to Plaintiff caused Plaintiff’s alleged 

vision loss. Plaintiff has failed to provide the required 

causation opinion from any qualified expert.

This is not a case where Dr. Noel declined to express any opinion 

regarding causation. Neither is it a case where she conceded her causation opinion 

indicated mere possibility, rather than probability. Read in context, the occasions 

Dr. Noel was equivocal on the subject appear to be an acknowledgment that 

ophthalmology is not her specialty. Her testimony acknowledging a lack of 

training in the specialty of ophthalmology was the basis of Dr. Nasim’s motion for 

summary judgment and was cited in support of the trial court’s order granting 

same. 

Adams argues Dr. Noel’s testimony was adequate on the element of 

causation to create a question of fact for the jury. In support, he cites to Richmond 

v. Hunt, 596 S.W.3d 103 (Ky. App. 2019). Richmond was a medical malpractice 

action, arguing a physician’s failure to timely diagnose a blood clot resulted in 

amputation of the plaintiff’s hand. Id. During a deposition, plaintiff’s retained 

expert offered equivocal testimony on the issue of causation. Id. at 106-07. The 
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expert initially testified that diagnosis of the blood clot within the “first 48 to 72 

hours” was critical to have saved the plaintiff’s limb. Id. at 106. However, he later 

“indicated that chances to save fingers after the 72-hour window did not diminish 

significantly.” Id. This testimony culminated in the expert appearing to concede 

he was unable to offer a sufficient opinion regarding causation:

Q: More probably – more probably than not, you cannot 

say that had Dr. Murdock seen this patient, that he – that 

Mr. Richmond would have had any different of an 

outcome can you?

A: Well, that you can’t say, right, because even if – even 

if he had got the diagnosis correct and you sent him right 

– he – it might have been too late for his hand, it was 

very possibly it was too late for his hand already.

Q: You can’t say more probably than not that it would 

have saved the limb?

A: That’s right. You can’t because . . . until you open up 

that arm, you really don’t know. You really don’t know 

how much damage there is going to be.

Id. at 107. 

The physician defendant moved for summary judgment, arguing 

plaintiff’s expert could state only that plaintiff might have had a different outcome 

had he been properly diagnosed. The trial court granted summary judgment. 

This Court found that, while the expert’s testimony emphasized by the defendant 

was equivocal on the issue of causation, in the same deposition, the expert “also 

testified that if Richmond had received a correct diagnosis by December 27, 
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there was a probability that his injury would have been less severe[.]” Id. at 108.

(emphasis in original).

Dr. Nasim cites to Ashland Hospital Corporation v. Lewis as 

analogous to the present facts. 581 S.W.3d 572 (Ky. 2019). In Ashland Hospital, 

the plaintiff filed a medical malpractice action, alleging his physician’s failure to 

diagnose a stroke following an angiogram caused greater injury than the stroke 

would have with earlier intervention. Id. at 575-76. However, while the plaintiff’s 

expert alleged a violation of the standard of care by the treating physician, he 

apparently offered no opinion whatever the treating physician could have limited 

the effects of the stroke through earlier intervention. The expert, when asked about 

this specifically, responded it was “impossible to tell.” Id. at 575.

The testimony the plaintiff in Ashland Hospital relied upon for 

causation came from the deposition of a retained expert for the defense. There, 

plaintiff’s counsel solicited testimony conceding, as a general matter, it was 

important to treat strokes promptly. However, our Supreme Court found this was 

inadequate to support causation. In affirming the trial court’s grant of summary 

judgment, the Supreme Court found that “an expert cannot speculate based on 

general, simplified information regarding diagnosis and treatment.” Id. at 580. 

Also, “when the expert witnesses were asked to consider the specifics of this case, 

they were unable to state with a reasonable degree of medical probability that the
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conduct [of the defendants] was a substantial factor in causing [plaintiff’s] 

injuries.” Id. 

While Dr. Nasim contends Ashland Hospital is analogous to the 

present matter, we find it is distinguishable. The issue there was not whether the 

expert’s testimony on causation failed for being contradictory or equivocal; it 

appears undisputed the plaintiff’s expert failed to offer any opinion as to causation.

Id. at 575. In Ashland Hospital, our Supreme Court held the general statements 

regarding the timely treatment of strokes, which appeared on the record through 

testimony of a defense expert, failed to create an issue of causation because it 

offered no analysis under the specific facts and circumstances of the case at hand. 

Id. at 580. In this case, Dr. Noel’s testimony did offer an analysis applying 

specific facts and circumstances of the case. 

We find the present matter more analogous to Richmond than Ashland 

Hospital. As with the expert in Richmond, Dr. Noel’s testimony might fairly be 

described as equivocal. Additionally shared with Richmond, there are contrasting 

sections of the deposition from which the two parties pick and choose for 

emphasis. 

A striking contrast with Richmond is present as to the substance of the 

equivocal expert testimony at issue. In Richmond, the defense alleged the 

equivocal testimony was fatal to the plaintiff’s case as it “failed to establish any 
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causal nexus between any alleged deviation from the standard of care and Mr. 

Richmond’s injuries.” 596 S.W.3d at 107. In the present case, the equivocal 

testimony at issue went to Dr. Noel’s qualifications, specifically a lack of training 

in the specialty of ophthalmology.

In Kentucky, an expert witness physician is not confined to expressing 

opinions only within her specialty. “There are numerous reported cases where a 

physician has been held qualified to express an opinion on medical matters outside 

his area of expertise.” Owensboro Mercy Health Sys. v. Payne, 24 S.W.3d 675, 

677-78 (Ky. App. 1999). “[T]he lack of specialized training by a doctor goes only 

to weight and not to competency.” Arndale v. Peay, 411 S.W.2d 473 (Ky. 1967)

(citing Kabai v. Majestic Collieries Co., 170 S.W.2d 357 (Ky. 1943)); see also

Washington v. Goodman, 830 S.W.2d 398, 400 (Ky. App. 1992); Ingersoll-Rand 

Co. v. Rice, 775 S.W.2d 924 (Ky. App. 1988 ).

3

In order for an expert to qualify to render opinion evidence, it is clear

the witness is not required to prove they possess qualifications of the highest or 

most particularized sort. There is no indication the circuit court held Dr. Noel was 

incompetent to offer expert testimony under KRE4 702. There is nothing atypical 

3 Recently, in a case with a pending motion for discretionary review, another panel of this Court

reached a similar conclusion, holding an expert physician need not specialize in the same area of 

care as the defendant. Lloyd v. Norton Hospitals, Inc., No. 2023-CA-0748-MR, 2024 WL 

1685440, at *5 (Ky. App. Apr. 19, 2024) (designated for publication, motion for discretionary 

review pending). 

4 Kentucky Rules of Evidence.
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about a physician rendering an opinion on medical matters outside his area of 

specialized expertise in Kentucky. Payne, 24 S.W.3d at 678-79 (citing Kabai v. 

Majestic Collieries Co., 170 S.W.2d 357 (Ky. App. 1943); Thompson v. Mayflower 

Coal Co., 379 S.W.2d 459 (Ky. 1964); Rogers v. Sullivan, 410 S.W.2d 624 (Ky. 

1966)). Being a specialist in infectious disease, it could be that Dr. Noel’s

testimony on the subject of optical neuropathy will not carry as much weight with 

a jury. See Payne, 24 S.W.3d 677-78. However, Dr. Noel’s concessions regarding 

her lack of ophthalmology training did not render her opinions regarding causation 

so speculative as to disqualify them. 

Here, the trial court based its summary judgment on a determination 

that Dr. Noel had conceded she was unqualified to testify in the field of 

ophthalmology. However, Dr. Noel’s qualifications, as a physician practicing in a 

different specialty, were a matter appropriate to be weighed by the jury. 

Accordingly, a genuine issue of material fact for the jury to review was present.

See Goodman, 830 S.W.2d at 400. Thus, we reverse the summary judgment.

CONCLUSION

For the foregoing reasons, we REVERSE the trial court’s grant of 

summary judgment and REMAND for further proceedings. 

ALL CONCUR.
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BRIEFS FOR APPELLANT:

Michael P. Reilly

Louisville, Kentucky

BRIEF FOR APPELLEE:

Robert L. Whitmer

Craig L. Johnson

Louisville, Kentucky