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

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2023-CA-0923-MR

KIMBERLY CARPENTER APPELLANT 

v. 

APPEAL FROM FAYETTE CIRCUIT COURT

HONORABLE KIMBERLY N. BUNNELL, JUDGE

ACTION NO. 20-CI-00177

JUSTIN A. SAUNDERS, M.D.; JOHN 

HILL SAUNDERS P.S.C. D/B/A 

SAUNDERS OCULOPLASTIC 

SURGERY, P.S.C. APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: ACREE, ECKERLE, AND KAREM, JUDGES.

KAREM, JUDGE: Kimberly Carpenter appeals from the circuit court’s order 

granting summary judgment in favor of her treating doctor in this informed consent 

medical malpractice action. Specifically, the circuit court found that Kimberly 

Carpenter failed to provide any proof that her alleged lack of informed consent 

caused her injuries. We agree and affirm the circuit court. 
-2-

FACTUAL AND PROCEDURAL BACKGROUND

Kimberly Carpenter (Carpenter), age 33 at the time of the surgery in 

question, is a registered nurse who sought medical treatment in September of 2016 

for what she believed was a droopy eyelid. Upon examination, the doctor surmised

she might be suffering from Silent Sinus Syndrome, or SSS.1 With this knowledge, 

Carpenter sought treatment with an ENT (an ears, nose, and throat specialist), Dr. 

1 According to the Cleveland Clinic:

Silent Sinus Syndrome (SSS) is a health condition affecting 

[the] maxillary sinuses, which are nasal passages in [the] cheek area 

next to [the] nose. The condition is characterized by a sunken eye 

(enophthalmos) and/or the downward displacement of [the] eyeball 

in [the] eye socket (hypoglobus). This occurs due to the collapse of 

[the] sinus walls and orbital floor. [The] orbital floor forms the roof 

of [the] maxillary sinus.

The condition can happen when [the] sinuses get clogged. 

Secretions build up in [the] sinuses and are then reabsorbed. Over 

time, [this condition can create] a vacuum [causing the] sinuses [to]

get smaller and smaller, leaving more room for [the] eyes to sink.

Silent Sinus Syndrome doesn’t usually cause any pain 

(that’s where the silent part comes in), but it may make [the] face 

look asymmetrical. It typically only affects one side of [the] face, 

but it can affect both. Treatment is required to prevent worsening 

symptoms and complications, such as peripheral vision loss (tunnel 

vision).

. . . .

Silent sinus syndrome is rare. The condition was first 

described in 1964, and since then, about 100 cases have been 

reported.

Silent Sinus Syndrome, CLEVELAND CLINIC, https://my.clevelandclinic.org/health/diseases/25192-

silent-sinus-syndrome (last visited Jul. 1, 2024).
-3-

Keith Alexander (Dr. Alexander), who subsequently ordered a CT scan. After 

reviewing the results of the scan, Dr. Alexander noted the presence of an infection 

which caused Carpenter’s eye to sink, thus confirming the diagnosis of SSS. 

For treatment, Dr. Alexander proposed Carpenter undergo a combined 

two-part surgery. Dr. Alexander planned to perform a decompensation surgery to 

remove the infection and he referred Carpenter to Dr. Justin Saunders (Dr. 

Saunders), an ophthalmologist who specializes in oculoplastic surgery,

2

to then 

correct the position of the eye and complete the second part of the surgery. 

Carpenter’s first visit with Dr. Saunders was on November 15, 2016,

wherein Dr. Saunders noted Carpenter’s eye was inferiorly and posteriorly 

displaced, or sunken down and back. He recommended surgery to implant a wedge 

under the eye, creating a platform to move the eye up and forward. Dr. Saunders

documented in his notes that he spent a considerable amount of time with Carpenter 

discussing potential complications that could result from the surgery including 

2 According to the Mayo Clinic:

Oculoplastic and orbital surgeons are ophthalmologists who 

completed additional fellowship training in the medical and surgical 

management of a wide range of conditions affecting the structures 

that surround the eye, including the eyelids, eye socket (orbit) and 

tear drainage system. 

Oculoplastic and Orbital Surgery, MAYO CLINIC, https://www.mayoclinic.org/departmentscenters/oculoplastic-and-orbital-surgery/overview/ovc20524322#:~:text=Oculoplastic%20and%20orbital%20surgeons%20are,orbit)%20and%20tear%2

0drainage%20system (last visited Jul. 1, 2024).
-4-

scarring, over/under correction, double vision, vision loss, and numbness along the 

right cheek. However, Carpenter asserts that the notes did not contain everything 

they discussed:

I specifically asked him how many times he had done this 

surgery, if he had examples and pictures of patients he 

had done this surgery on before. I asked him when we 

talked about the type of implant to be used. We discussed 

size, my anatomy, would it be appropriate, and those – all 

those things are not mentioned in detail on this note.

Dr. Saunders did not provide photos of prior surgeries. And when 

Carpenter inquired as to the number of similar procedures that Dr. Saunders had 

performed on patients before her, he simply replied that he had experience. Lastly, 

Carpenter maintains that she left the appointment with an understanding that Dr. 

Saunders would have multiple sizes of wedges in the operating room from which he 

could choose to ensure the appropriate size wedge was implanted. Notably, it is 

undisputed that Carpenter signed a consent acknowledging her awareness of 

potential complications from surgery.

In fact, prior to the December 14, 2016 surgery, Carpenter signed a 

pre-operative “Consent to Operation, Administration of Anesthetics and Rendering 

of Medical Services,” which stated: 

1. You have talked with your physician and he/she has 

explained to your satisfaction the following: (1) the 

procedure(s); (2) the potential benefits, risks, or side 

effects, including potential problems that might occur 

during recuperation; (3) the likelihood of achieving 
-5-

goals; (4) reasonable alternatives to procedure(s), if 

any; and (5) the relevant risks, benefits, and side 

effects related to the alternatives, including the 

possible results of not receiving care, treatment and 

service; (6) any limitations on the confidentiality of 

information learned from or about the patient. Based 

on your physicians’ explanation of the benefits and 

risks of the procedure(s) and the alternatives available 

you are agreeing that the potential benefits of the 

procedure(s) outweigh the potential risks involved. 

Your physician has explained that all 

surgeries/procedures involve some risk. Risks can 

include severe loss of blood, infection, perforation, 

cardiac arrest, loss of vision, stroke, paralysis and, in 

rare circumstances, death. You understand that if 

complications occur, additional medical treatment 

may be required. 

2. You are aware that in the practice of medicine, other 

unexpected risks or complications not discussed may 

occur. You also understand that during the course of 

the proposed procedure(s) unforeseen conditions may 

be revealed requiring the performance of additional 

procedures, and you authorize such procedures to be 

performed. You further acknowledge that no 

guarantees or promises have been made to you 

concerning the results of any procedure or treatment. 

Subsequently, Carpenter underwent the combined double surgery as planned and it

was initially deemed a success. 

Over the next 26 months, Dr. Saunders saw Carpenter in his office on a 

number of occasions and telephoned her frequently to check on her progress. 

Notably, Carpenter did not experience any complications from the surgical 

procedure for the first seven months after the operation. However, during a follow-
-6-

up visit with Dr. Saunders on July 27, 2017, Carpenter complained of renewed 

symptoms. And, between February 23, 2018, and January 11, 2019, Carpenter 

underwent three additional surgical procedures with Dr. Saunders to address the 

appearance of her right eye and double vision. Ultimately, the implanted wedge 

was removed entirely. 

Carpenter acknowledges that she understood the risks of scarring and 

complications that ultimately led to the removal of the implant. She even 

recognizes that the surgery was performed within the normal standard of care. 

However, Carpenter brought suit alleging negligent care and treatment due to a 

failure to obtain informed consent for the initial surgery. Specifically, she 

complains: 1) Dr. Saunders did not answer her question as to how many prior 

surgeries of the same type he had performed; and 2) he misled her as to the number 

of wedges that would be available during the surgery. She maintains that, had she 

been aware of these facts, she would never have consented to the surgery and thus 

would not have suffered any of the subsequent complications. In making her claim

Carpenter provided expert testimony to establish Dr. Saunders violated the standard 

of care for obtaining informed consent by not answering Carpenter’s experience 

question with a specific number of similar surgeries performed, in addition to 

misleading her as to the number of wedges available during surgery. However, the 

trial court found that Carpenter failed to carry her burden on the essential element 
-7-

of causation and granted Dr. Saunders’ summary judgment motion. This appeal 

followed.

STANDARD OF REVIEW

“The standard of review on appeal of summary judgment is whether 

the trial court correctly found there are no genuine issues of material fact and the 

moving party is entitled to judgment as a matter of law.” Carter v. Smith, 366

S.W.3d 414, 419 (Ky. 2012). Under this standard, an action may be terminated 

“when no questions of material fact exist or when only one reasonable conclusion 

can be reached[.]” Shelton v. Ky. Easter Seals Soc., Inc., 413 S.W.3d 901, 916 (Ky.

2013). Summary judgment involves only legal questions and the existence, or nonexistence, of material facts are considered. Stathers v. Garrard Cnty Bd. of Educ.,

405 S.W.3d 473, 478 (Ky. App. 2012). Our review is de novo. Mitchell v. Univ. of

Ky., 366 S.W.3d 895, 898 (Ky. 2012).

ANALYSIS

1. Carpenter understood the risks and hazards of surgery.

Turning to the substantive law of informed consent, “it is a wellestablished principle of law that, as an aspect of proper medical practice, physicians 

have a general duty to disclose to their patients in accordance with accepted medical 

standards the risks and benefits of the treatment to be performed.” Sargent v.

Shaffer, 467 S.W.3d 198, 206 (Ky. 2015), overruled on other grounds by Univ.
-8-

Med. Ctr., Inc. v. Shwab, 628 S.W.3d 112 (Ky. 2021). In pertinent part to the case 

sub judice, KRS3 304.40-320 provides the informed consent standard:

In any action brought for treating, examining, or operating 

on a claimant wherein the claimant’s informed consent is 

an element, the claimant’s informed consent shall be 

deemed to have been given where:

(1) The action of the health care provider in obtaining 

the consent of the patient or another person 

authorized to give consent for the patient was in 

accordance with the accepted standard of medical 

or dental practice among members of the profession 

with similar training and experience; and

(2) A reasonable individual, from the information 

provided by the health care provider under the 

circumstances, would have a general 

understanding of the procedure and medically or 

dentally acceptable alternative procedures or 

treatments and substantial risks and hazards 

inherent in the proposed treatment or procedures 

which are recognized among other health care 

providers who perform similar treatments or 

procedures . . . .

KRS 304.40-320(1)-(2).

4

 The subsections of this statute are generally referred to as 

pertaining to 1) process and 2) content. “Thus, to meet the requirements of the first 

subsection the [patient] must show that the process by which the medical 

defendants obtained her consent did not comply with ‘accepted standards’ within 

3 Kentucky Revised Statutes.

4 KRS 304.40-320(3) provides requirements for obtaining informed consent in emergency 

situations; that subsection is inapplicable in this case. Thus, only the analysis of KRS 304.40-

320(2) is necessary. 
-9-

the medical profession.” Shwab, 628 S.W.3d at 121. Carpenter’s expert testified he 

had no issue with how consent was obtained, or in other words, the process by 

which consent was obtained. In arguments before the trial court, Carpenter 

reiterated the case sub judice is a “content only” case. Thus, we restrict our analysis 

to the second prong of the standard: content of the information provided to 

Carpenter for the purposes of obtaining informed consent for the surgery.

Carpenter’s only expert opined that the scarring that resulted in 

multiple follow-up surgeries was accounted for in the consent Carpenter gave. His 

only criticism revolved around the knowledge Carpenter had of Dr. Saunders’ 

experience and the number of implants available during the operation. In other

words, he took exception to the content of the information provided to obtain 

informed consent and maintained that Dr. Saunders violated the second prong of the 

informed consent statute. Assuming, arguendo, this is in fact true, the analysis 

moves to whether the failure to provide the information in question caused the 

injury suffered by Carpenter.

“A negligence action requires proof of: (1) a duty on the part of the 

defendant; (2) a breach of that duty; and (3) a consequent injury, which consists of 

actual injury or harm, plus legal causation linking the defendant's breach with the 

plaintiff's injury.” Hugenberg v. West American Ins. Company/Ohio Cas. Group, 

249 S.W.3d 174, 181 (Ky. App. 2006). Dr. Saunders clearly had a duty to obtain 
-10-

informed consent. And Carpenter admits that the complications she endured as a 

result of surgery were explained to her and she provided the necessary prior consent

in relation to those complications. There is no evidence that the information she 

claims to have lacked when providing consent caused the injuries of which she now 

complains. There is ample evidence in the record supporting the fact that Dr. 

Saunders explained the potential complications that could result from the surgery 

including scarring, over/under correction, double vision, vision loss, and numbness 

along the right cheek. It was in fact, and all parties agree, one or more of these 

complications which necessitated multiple follow-up surgeries and the ultimate 

removal of the implanted wedge. We agree with the trial court that Carpenter, as a 

matter of law, has failed to carry her burden of presenting evidence sufficient to 

create a genuine issue of material fact on the essential element of causation. 

2. Carpenter maintains she would not have approved of Dr. Saunders 

performing her surgery had he been forthright with her.

Historically, informed consent medical malpractice cases have focused 

on doctors obtaining consent but failing to disclose the risk of treatment to the 

patient. For example, in a case from the 1970s, “the plaintiff alleged that a 

physician had failed to disclose a risk which he had known to exist, or had failed to 

inform her of the risks of a medical procedure to the same degree as physicians of 

ordinary prudence and skill would have done.” Keel v. St. Elizabeth Med. Ctr., 842 
-11-

S.W.2d 860, 861 (Ky. 1992) (citing Holton v. Pfingst, 534 S.W.2d 786, 788 (Ky. 

1975), superseded by statute as stated in Sargent, 467 S.W.3d at 207).

Carpenter’s claims differ greatly from the historical context of 

informed consent medical malpractice cases. By Carpenter’s own admission she 

was, prior to the surgery, advised of all the complications of which she suffered 

following surgery. However, she maintains she would not have allowed Dr. 

Saunders to operate had he provided her with the information she requested. The 

Supreme Court faced a similar issue when analyzing an informed consent medical 

malpractice claim in Vitale v. Henchey, 24 S.W.3d 651, 654 (Ky. 2000). 

Maurice Henchey, who held a medical power of attorney for his 

mother, gave consent for surgery on his mother to remove a blood clot. After 

conferring with her treating doctor, Dr. Donald Varga, and surgical consultant Dr. 

Athel Sparrow, two surgeons were identified who could perform the required 

surgery, Dr. Thomas Wieman, and his partner Dr. Gary Vitale. Dr. Sparrow felt it 

was ill-advised to use Dr. Vitale as he was “too aggressive [and] not 

compassionate[.]” Id. (quoting one of the defendant physicians). Henchey 

subsequently agreed to allow Dr. Wieman to perform the surgery. Unknown to 

Henchey, however, Dr. Vitale performed the surgery due to a scheduling conflict 

with Dr. Wieman. Later that evening, Henchey’s mother’s condition worsened 

requiring yet another surgery, again performed by Dr. Vitale. Unfortunately, 
-12-

Henchey’s mother died the following day. Henchey then brought suit alleging he 

never gave consent for surgery to be performed by Dr. Vitale. 

Henchey testified that he was not informed about 

the change in surgeons and he believed Drs. Wieman and 

Sparrow would perform the surgeries which were 

actually performed by Dr. Vitale. Henchey further 

testified that, based on Dr. Sparrow’s comments to him 

about Dr. Vitale, he would not have consented to Dr. 

Vitale performing the surgeries on his mother. Henchey 

denied the physicians’ contention that consents

authorizing Dr. Vitale to perform the November 6 

surgeries were read to him over the phone and that he 

gave a blanket consent for those surgeries.

Id. at 654. 

The Supreme Court ultimately held that negligence caselaw, together 

with Kentucky’s informed consent statute, were inapplicable to the case. Henchey 

was well aware of the risks and hazards of the procedure and gave valid consent for 

the surgeries to proceed. Rather, the Court found that Henchey’s claim was one of 

battery.

[T]he physicians, [and the] trial court, confused the issue 

of informed consent, i.e., the failure to disclose a risk or 

hazard of the surgeries, with the issue of no consent, or 

whether any valid consent was obtained prior to Dr. 

Vitale’s performance of the surgeries. Holton and the 

Kentucky Informed Consent Statute do not apply when 

surgery is performed without the patient’s consent and 

Henchey’s claim here is based on the lack of consent for 

Dr. Vitale to perform the surgeries. Henchey testified at 

trial that he gave his consent to surgeries which were to 

be performed by Drs. Wieman and Sparrow, but did not 

give his consent to Dr. Vitale’s performance of those 
-13-

surgeries. Henchey’s claim does not allege that the 

physicians did not advise him of the risks inherent in the 

surgeries, nor does he even suggest that Dr. Vitale 

improperly performed the surgeries. Consequently, 

Holton and the Kentucky Informed Consent Statute do 

not apply. Henchey alleges that he did not, and would 

not have, consented to Dr. Vitale performing the 

surgeries. This is not a claim for negligence, but for 

battery.

Id. at 656.

Similarly, Carpenter has conflated the law governing informed consent 

with that of battery. By her own admission she understood the risks of surgery and 

gave consent after being fully advised of potential complications. To the extent that 

she maintains, with 20/20 hindsight, she would not have given Dr. Saunders

permission to operate, her claim falls more in line with battery if any claim exists at 

all and her claim for negligence was properly dismissed.

CONCLUSION

Accordingly, for the foregoing reasons, we affirm the decision of the 

Fayette Circuit Court.

ALL CONCUR.
-14-

BRIEFS FOR APPELLANT:

Escum L. “Trey” Moore, III

Lexington, Kentucky 

BRIEF FOR APPELLEES:

Carl D. Edwards

Lexington, Kentucky

Christopher B. Rambicure

Louisville, Kentucky