RENDERED: SEPTEMBER 4, 2020; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth o f Kentucky Court of Appeals

NO. 2019

- CA

- 000094

- MR

TEDDY COOPER AND LORI COOPER, HIS WIFE APPELLANTS

APPEAL FROM JEFFERSON CIRCUIT COURT

v. HONORABLE ANGELA M C CORMIC K B I SIG , JUDGE ACTION NO. 13

- CI

- 0 01115

AJITH NAIR
, M.D. AND KENTUCKIANA PAIN SPECIALISTS, P.S.C. APPELLEES

OPINION AFFIRMING

**   **  **

BEFORE: GOODWINE
, LAMBERT , AND K. THOMPSON, JUDGES

.
THOMPSON
, K. JUDGE: Teddy Cooper and his wife, Lori Co o per, filed this
action against Ajith Nair, M.D. and Kentuckiana Pain Specialists, P.S.C.
(collectively Dr. Nair) for medical malpractice and loss of consortium. The
Jefferson Circuit Court granted Dr. Nair’s motion for summary judgment- 2

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concluding that the re was no genuine issue of material fact on the necessary

element of whether Dr. Nair breached the standard of car e . T he Co o pers filed a

motion to alter, amend or vacate , which was denied . This appeal followed.

Teddy was referred to pain management with Dr. Nair o n May 24,

2011
, for back pain. Dr. Nair initially treated Teddy with epidural injections.

H owever , Teddy’s pain persisted, and Dr. Nair prescribed him Percocet. Teddy
continued this medication regime, and then underwent four injections starti ng in
September 2011 for neck pain. After Teddy’s pain continued, Dr. Nair performed
a radiofrequency ablation at C 4 , C5 of the medial branch nerve on the right side.
Dr. Nair performed a total of five radiofrequencies through December 13, 2011.

On Janu ary 17, 2012, Teddy reported to Dr. Nair that his pain had
returned. Dr. Nair then discussed the option of implantation of a pain pump or
spinal stimulator, both of which would require a trial prior to actual implantation.
Teddy agreed to proceed with th e pain pump trial. Teddy was to l d o f the adverse

effects of the pain medication, Dilaudid, which would be used in the pain pump

trial. He continued to take Percocet for pain.

The pump trial consisted of placing a temporary tunneled catheter in
the epi dural space, connected to an external pump, and then the infusi on of
Dilaudid to test Teddy’s tolerance to the drug.- 3

- On March 6, 2012, Dr. Na ir placed the temporary catheter in the
epidural space and attached it to the external trial pump. There were no
complications and Teddy was discharged from the hospital the same day.

After returning home, Teddy laid down for a nap with his CPAP on
for his sleep apne a. At about 1:15 p.m., Lori and the Coopers’ son checked on
Teddy
, found him unresponsive and beg an CPR. Paramedics arrived and
administered multiple doses of Narcan, a drug used for overdose victims. Teddy

was intubated, and the paramedics continued chest compressions. Teddy was

transferred to the Knox Ireland Army Hospital , where he was resuscita ted, and the
breathing tube was removed. The epidural catheter was clamped, and the batteries

were taken from the external pump. Teddy was transferred to the Hardin
Memorial Hospital where the catheter and pump were removed. He remained
hospitalized for three days.

The Coopers filed this action alleging Dr. Nair breached the standard

of care required by a medical professional when administering an excessive ly high

dose of Dilaudid. T he case was set for trial on September 18, 2018. That date was

cont inued in February 2018 after the Coopers requested a continuance to have
additional time to name an expert witness. That request was granted, and the
Coopers subsequently made their expert disclosures pursuant to Kentucky Rules of

Civil Procedure (CR) 26. 02(4), which included Dr. Robert Masone , a Board- 4

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Certified Anesthesiologist . In their disclosure, the Coopers provided Dr. Masone’s

unsworn report dated May 5, 2018

.

Dr. Masone noted in his report that Dr. Nair had Teddy on high levels
of pain medicatio n and that the opioid delivered through the epidural Dr. Nair

inserted ma de the dosage more potent. In his report, Dr. Masone opined:

In my medical opinion, with a reasonable degree of medical certainty, the dose of Dilaudid used for the epidural trial for Mr. Cooper was too high and was the direct and proximate cause of his respiratory depression, loss of consciousness, and aspiration pneu moni a. This was below the standard of care of similar practi tio ners in a similar situation.
Following the CR 26.0 2(4) disclosure, Dr. Masone’s discovery deposition was

taken on July 13, 2018.

In that deposition, defense counsel questioned Dr. Masone about the
opinion expressed in his report. The relevant part of the exchange between defense

c ounsel and Dr. Masone was as follow s :

Counsel : And is it correct that t he gist of your report is that you’re critical about the dosing that Dr. Nair used for this patient, M r

. Cooper?

Dr. Masone : That’s correct

.
Counsel: And other than w h at you’ve said a b out t h e bolus dose , is there any other criticism of Dr. Nair that you have at all?

Dr. Masone: Can I see my report, please?- 5

- Counsel: Sure.

Dr. Masone: My criticism is, indeed, the dose used in doing the trial.

C ounsel: So this is my chance to talk to you about that and walk out of here trying to understand what you say.

D r. Masone: But I reserve the right to amend that opinion

–

C ounsel: You don’t have any right to amend.

D r. Masone:

– should new information be made available.

C ounsel: People say that all the time. You don’t have any right to amend it.

D r . M asone: I’d still like it in the record.

C ounsel: Okay, you can play lawyer

. The dialogue continued:

Counsel: This is my chance to find out what you’re going to say, and counsel’s chance to tell me what you’re going to say. If you come up with something new I’m going to be very unhappy.

Dr. Masone: Just looking for the truth, sir.

Counsel: Me too. So we’ll get to those dose opinions in just a second . But that’s the gist of this criticism, correct?

Dr. Masone: Correct.

Counsel: Do you believe that Dr. Nair’s do se was below the applicable standard of care for this patient?- 6

- Dr. Masone: Can I play lawyer again? Res ispa loquitur
, the matter speaks for itself. Has t h at do se ever been given ? Probably. How do you say his name?

Counsel: Nair, rhymes with fire.

Dr. Masone: My guess is he’s used that do se before,

Counsel: Without incident?

Dr. Masone: Without incident. He may have. I d on’t know that. I know I have used doses before, and when I’ve reviewed my note s , I said boy, I was a little bold in that. I’m going to be more conservative next time. So had he

— I’m not going to say it was below the standard of care, but I will say it c aused the incident

. ( E mphasis added).

Dr. Mason e testified that to make the pump trial work, sometimes a
doctor will be aggressive and give a dose of pai n medication on the high end of the
dosage spectrum. However, h e again testified he would not say the dosage given
by Dr. Nair to Teddy was a breach of the standard of care:

Th is dose, while I’m not going to say was out of the standard of care, was in the higher end of the spectrum of bolus doses. I have probably done that. I don’t know. I don’t ha ve any charts in front of me . But I don’t think I’ve ever gone that high, especially with Dil au did. Dil au did is different.
On July 20, 2018, Dr. Nair filed a motion for summary judgment on
the basis that Teddy failed to provide expert testimony tha t Dr. Nair breached t he

standard of care and
, in fact, Dr. Masone testified Dr. Nair did not breach the- 7

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standard of care. In response, the Coopers relied on Dr. Masone ’s unsworn report
and his testimony that Dr. Nair’s aggressive dosage of Dilaudid was on the high

end of the spectrum doses.

The trial court noted Dr. Masone was not critical of the bolus but of
the dosage used and explicitly testified he could not say the Dilaudid dosage fell

below the standard of care. The trial court ruled t h at Dr. Masone’s un sworn report
was insufficient to overcome his later sworn testimony and, concluding that Teddy
had not produced affirmative evidence that Dr. Nair breached the applicable
standard of care, g ranted summary judgment in Dr. Nair ’s favor on t he Coopers’

claims

. The Coopers filed a motion to alter, amend or vacate alleging Dr.

Masone’s testimony was sufficient to defeat Dr. Nair’s summary judgment motion
,
and argu ing for the first time that the case did not require exper t testimony based

on res ipsa loquitor . In addition to reaffirming its prior reasoning, the trial court
ruled that the proper dosage rate of administration of narc o tic pain medications is

not a matter of common knowledge and, therefore, expert testimony was required

to establish that Dr. Nair breached the standard of care. The motion was denied
, and this appeal followed.

The general summary judgment standard is applicable to medical
malpractice cases. S ummary judgment is appropriate where the “ pleadings,- 8

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depositions, answers to interrogatories, stipulations, and admissions on file,
together with the affidavits, if any, show that 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.” CR 56 .03. Summary judgment may be granted when “as a matter of law, it
appears that it would be impossible for the respondent to produce evidence at the
trial warranting a judgment in his favor and against the movant.” Steelvest, Inc. v.

Scansteel Serv. Ctr., Inc. , 807 S.W.2d 476, 483 (Ky. 199 1 ) (internal quotation

marks omitted).

“Although an appellate court reviews the substance of

a summary judgment ruling de novo , ‘ a reviewing court must also consider
whether the trial court gave the party opposing the motion an ample opportunity to
respond and complete discovery before the court entered its ruling. ’ ” Brown v.
Griffin , 505 S.W.3d 777, 78 1 (Ky.App. 2016) (quoting Blankenship v. Collier , 302

S.W.3d 665, 6 68 (Ky. 2010) )

. The Coopers do not dispute that t h e y had a
sufficient amount of time to complete discovery and, therefore, o ur only concern is
with the substance of the trial court’s summary judgment.

T o survive summary judgment in a typical malpractice claim, the
plaintiff “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.” Blankenship , 302 S.W.3d at 675. Two narrow exceptions exist to the- 9

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requirement of an expert witness: r es ipsa lo quitur cases, where negligence and

causation may be inferred from the mere occurrence of the event and the

defendant ’ s relation to it, and where the defendant physician makes certain
admissions that make his negligence apparent. Perkins v. H a usl a den
, 828 S.W.2d

652, 655 (Ky. 1992). W hen a sufficient amount of time for discover y has passed
and the plaintiff has not introduce d sufficient evidence to establish the
applicable standard of care, the defendant is e ntitled to summary judgment as a

matter of law. Blankenship , 302 S.W.3d at 668

.

T he Coopers argue there are two reasons why the trial court’s
summary judgment should be reversed. First, t he y argue Dr. Masone was

disclosed as an expert in their CR 26.02(4) disclosure . In that same disclosure,
they noted Dr. Masone would testify as to the standard of ca r e expected of a
medical practi ti oner and that Dr. Nair’s alleged negligence was the proximate
cause of Teddy’s inju ry

. The Coopers argue that despite Dr. Masone’s swo rn
testimony to the contrary, disclosing Dr. Masone’s report wherein he opined that
the pain dosage administered by Dr. Nair to Teddy was below the applicable

standard of care was sufficient to d efeat Dr. Nair’s summary judgment motion

. Second, the Cooper s argue this is a “classic case of res ispa loquitur so that no
expert was required. ”- 10

- A s the Coopers not e , t he y identified Dr. Masone as an expert.

However, t he y overlook that Dr. Mason e expressly stated in his sworn testimony

that while he was critical of Dr. Nair’s dosage decision
, he would not say Dr. Nair

brea c hed the standard of care by adminis t ering the dosage of Dil audid.

CR 56 .03 provides the specific affirmative evidence to be con sidered
by the trial court when deter min ing whether summary judgment is proper. It

spe cifically lists “ t he pleadings, depositions, answers to interrogatories,
stipulations, and admissions on file, together with the affidavits [.]” Id

. Dr.
Masone’s report was not in affidavit form n or sworn to in any way

. As an unsworn
medical report is not listed in CR 56.03 to be considered by the trial court when
granting or denying summary judgment
, Dr. Nair asserts that Dr. Masone’s
unsworn medical report may not be considered to defeat his properly suppor ted
motion for summary j udg ment. We agree.

Federal Rule s of Civil Procedure (FRCP) 56(c) corresponds to
Kentucky ’s CR 56

. 03
, sta t ing “ that a summary judgment is proper ‘ if the
pleadings, depositions, answers to interrogatories and admissions on file, together
with the affidavits, if any, show that 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. ’ ”

Steelvest, Inc.
, 807 S.W.2d at 480 (quoting FRCP 56 (c) )

. Interpreting the federal

rule, the f ederal Sixth Circuit C ourt of Appeals ha s previously held that a court- 11

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may not consider unsworn statements when ruling on a motion for summary
judgment. See Pollock v. Pollock
, 154 F.3d 601, 611 n. 20 (6th Cir. 1998) (citing

Dole v. Elliott Travel & Tours, Inc.
, 942 F.2d 962, 968

- 69 (6th Cir. 1991 ) )

.

Mor eo ver, Dr. M a sone expressly stated in his sworn deposition
testimony that he would not say the Dilaudid dosage administered by Dr. Nair fell

below the standard of care and, therefore, his sworn testimony directly contradicted
his unsworn report. As observed in Gilliam v. Pikeville United Methodist Hosp ital

of Kentucky, Inc. , 215 S.W.3d 56, 62

- 6 3 (Ky.App. 2006 ) (internal footnotes

omitted):

T he Kentucky Supreme Court re cently noted that “ ʻ [a]s a

general proposition, a deposition is more reliable than an affidavit. ’” While a post

- deposition affidavit may be admitted to explain deposition testimony, “an affidavit which merely contradicts earlier testimony cannot be submitted for the purpose of attempting to create a genuine issue of material fact” to avoid summary judgment.

I f a deposition is more reliable than an affidavit, certainly it is far

more reliable that an unsworn medical report. Consequently, an ear lier unsworn
medical report that contradicts later deposition testimony cannot be submitted for
the purpose of attempting to create a ge n uine issue of material fact to defeat a
properly supported summary judgment motion.

I n their CR 59.05 motion, the Coo pers argued for the first time that
expert testimony wa s not required. “ Whether expert testimony is required in a- 12

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given case is squarely within the trial court ’ s discretion. Absent an abuse of

discretion, we will not disturb the trial court ’ s ruling. ” Brown
, 505 S.W.3d at 782

( citation omitted).

T he trial court did not abuse its discretion when it determined expert
testimony was required. As the trial court observed, it is not within the common
experience of a lay juror to know the proper dose of op ioids to deliver through the
pain pump trial for Teddy . C o nsequently, whether Dr. Nair breached the
applicable standard of care requ ire d expert testimony

.

Because Teddy did not produce affirmative expert testimony that Dr.

Nair breach ed the standard of care in response to Dr. Nair’s motion for summary
judgment, the trial court properly granted summary judgment on Teddy’s medical
malpractice claim. As K entucky Revised Statutes (KRS) 411.145 permits recovery
for loss of consortium only where a plaintiff’s damages result from a negligent or
wrongful act, Lori’s loss of consortium claim likewise fails.

For the reasons stated, the summary judgment of the Jefferson Circuit

Court is affir med.

ALL CONCUR

.- 13

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BRIEF S FOR APPELLANT S :
Larry D. Ashlock Elizabethtown, Kentucky BRIEF FOR APPELLEE S :

Richard P. Schiller Louisville, Kentucky