RENDERED: DECEMBER 17, 2021; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth of Kentucky Court of Appeals

NO. 2020

- CA

- 1532

- MR
ESTATE OF CLARENCE H. THOMAS, JR

. AND ADRIENNE MOORE, AS ADMINISTRATRIX OF THE ESTATE OF CLARENCE H. THOMAS, JR

. APPELLANTS

v. APPEAL FROM FAYETTE CIRCUIT COURT

HONORABLE LUCY ANNE VANMETER, JUDGE

ACTION NO. 15

- CI

- 04673

KENTUCKY ONE HEALTH PARTNERS, LLC; JESSE SABI I TI , 1 M.D.; KENTUCKY ONE HEALTH , INC.; AND SAINT JOSEPH HEALTHCARE, INC., DBA SAINT JOSEPH HEALTH SYSTEM , INC. AKA SAINT JOSEPH HOSPITAL APPELLEES

OPINION AFFIRMING
**   **  **
BEFORE: DIXON, M c NEILL , AND K. THOMPSON, JUDGES.

1 The notice of appeal contained a misspelling of A ppellee’s surname. We have opted to utilize the correct spelling

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DIXON, JUDGE: Appellants ( t he Estate) appeal various orders of the Fayette Circuit Court granting Appellees ’ motions for summary judgment, denying the applicability of res ip s a loquitur , excluding the Estate’s expert’s opinion, and rulings on motions in limine . After a careful review of the briefs, record, and law,

we affirm. FACTS AND PROCEDURAL BACKGROUND

Clarence Thomas , Jr. , presented to the emergency room at S aint Joseph Hospital on January 6, 2015 . He was evaluated by Dr. Sabi i ti in the early hours of January 7, 2015 , and was ultimately admitted for ongoing care and observation

. During Thomas’s admission, he developed a pressure wound near his
coccyx ; no infection was noted. T homas was then discharged on January 23, 2015.

At this time, Thomas’s care was transferred to Cardinal Hill Hospital where he was to undergo two to three weeks of physical therapy

. H owever, Thomas left against medical advice on January 26, 2015, only three days into his
treatment regimen . Thereafter, Thomas received services from Cardinal Hill
H ome Care from January 27, 2015 , to March 4, 2015 . Reports from his skilled

nurses indicate that Thomas was noncompliant with wound care during this time

. Tho mas was re - admitted to S aint Joseph Hospital on March 4, 2015, for knee surgery, but the procedure was delayed due to an infection in both the coccyx wound and in a pressure wound that had developed on his knee

.- 3

- Thereafter, Thomas was in and out of mul tiple medical facilities , including S ain t Joseph Hospital , Select Services Hospital, Brookdale Richmond Place, and the University of Kentucky Hospital (UK), for various health issues , including the infected coccyx wound, a hip injury resulting from a fall , sepsis, and an infection in his knee. Thomas was admitted to UK a final time on October 16,
2015 , and subsequently died there on November 30, 2015 . The death certificate cited cardiorespiratory failure as the cause of death.

On December 30, 2015, the Estate filed its complaint asserting claims of negligence, gross negligence, wrongful death, loss of love and affection , 2 and corporate liability. Appellees moved for summary judgment arguing the Estate had failed to timely designate an expert. The Estate objected arguing no expert was required under the doctrine of res ipsa loquitur

. In an order entered March 7, 2018, t he court determined that the doctrine was not applicable but, in lieu of granting summary judgment, affo rded the Estate an extension of time to disclose an expert. The Estate then retained Dr. Jackson who was deposed

. At deposition, Dr. Jackson opined that the Appellees did not meet the applicable standard of care where they failed to : (1) turn Thomas as frequently as necessary, (2) provide sufficient skin protection, (3) provide a special mattress, and (4)

2 This claim was dismissed by order entered March 13, 2017 , and is not at issue in this appeal.- 4

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manage his protein levels. Dr. Jackson stated that he did not know how frequently Thomas was turned, what ski n protection was provided, what type o f mattress was used, or what Thomas’s protein levels were , but opined the Appellees’ actions were clearly insufficient because a wound developed

. By way of explanation, Dr. Jackson asserted he did not need to know these details because skin breakdown is

a lways preventable and, accordingly, any skin breakdown is the product of negligence. Dr. Jackson also could not specifically identify who failed to provide the necessary care other than to say Dr. Sabi i ti failed to order a skin integrity plan

.

On the i ssue of causation, Dr. Jackson acknowledged that Thomas’s wound was not infected at the time he was discharged from S aint Joseph Hospital

. However, based solely on his experience as the medical director of a nursing home for 20 years , where he dealt with wound care and bedsores , Dr. Jackson opined the wound became infected at some point before March 4, 20 15 , and the infection migrated to Thomas’s knee. Ultimately, Dr. Jackson believes the skin infection led
to other recurrent infections which entered Thomas’s bloodstream causing sepsis and contributing to his death. Dr. Jackson acknowledged that Thomas had multiple health problems , including abscesses in the brain and lung, eye problems requiring retinal surgery, a seizure disorder, pneumonia, diabete s, hypertension, foot drop

– a neuropathy

– and achalasia. Dr. Jackson also conceded that he did not review Thomas’s medical records from UK for his October t hrough November- 5

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2015 admission ( where Thomas died ) , the Cardinal Hill Home Care notes from January to March 2015 ( the time Dr. Jackson asserts the wound became infected ) , Thomas’s primary care records, or S aint Joseph Hospital’s policy and procedures.

Regarding claimed medical expenses, Dr. Jackson opined that the treatment Thomas received after Januar y 23, 2015 , was reasonable and necessary. When asked how Dr. Jackson could reach this conclusion given his admission that he did not review all of Thomas’s medical records, Dr. Jackson asserted Thomas
needed treatment but conceded he had not seen the numb ers and was speculating. Dr. Jackson also acknowledge d that he was not an expert on hospital service charges and that he did not have an opinion as to the cost s and expenses of the services provided to Thomas because he did not know the specifics.

Afte r deposition, Appellees moved to exclude Dr. Jackson’s testimony pursuant to KRE 3 702 and Daubert v. Merrell Dow Pharm aceuticals , Inc. , 509 U.S. 5 7 9, 113 S. Ct. 2786 , 125 L. Ed. 2d 469 (1993), and for partial summary judgment on the punitive damages and vicarious liability claims. After hearing arguments, t he court found that Dr. Jackson’s testimony was not based upon
sufficient data and facts where he did not review all pertinent medical reco rds and , regarding the standard of care, where he could not identify specific deviations or

even what should have occurred. The c ourt further found that Dr. Jackson’s

3 Kentucky Rules of Evidence.- 6

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testimony was not the product of reliable principles and methods where his standard of c are opinion was inconsistent with Kentucky law and his causation opinion was based solely on a bald assertion that he had seen similar cases. As to partial summary judgment, the c ourt concluded the Estate had failed to demonstrate any affirmative evidence to support punitive damages or vicarious liability

. Accordingly, by an order entered October 14, 2020, the court excluded Dr. Jackson’s testimony and granted Appellees summary judgment on the punitive and vicarious liability claims. On October 28, 202 0 , the court entered an order resolving Appellee s ’ various motions in limine . Finally, on November 18,
2020 , the c ourt entered an order granting summary judgment to the Appellees on all remaining claims. This appeal followed. Additional facts will be in troduced as they become relevant. ANALYSIS

The Estate claims that the court erred in concluding that the doctrine
of res ispa loquitur is not applicable and necessitating that the Estate obtain an expert. Before we reach the merits, we will address the Estate’s claim that the court did not comply with the mandates of Baptist Healthcare System, Inc. v. Miller , 177 S.W.3d 676 (Ky. 2005) , and conduct a hearing. We disagree with the Estate that Miller necessitates a hearing. Miller held that it would be- 7

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“inappropriate to use a CR [ 4 ] 56 summary judgment to resolve what is essentially a procedural dispute as to the need for an expert. In su ch disputes, it is within the trial court’s discretion to impose sanctions for failure to comply rather than to grant summary judgment[.]” Id. at 681

- 82. The court’s order granting the Estate additional time to retain an expert after determining res i ps a loquitur did not apply is consistent with Miller

. Therefore , the Estate’s claim of error is without merit. We now will consider the merits of the court’s decision that res i ps a loquitur does not apply.

Negligence may not be inferred merely from a poor result. Meador v. Arnold , 264 Ky. 378, 94 S.W.2d 626, 631 (1936). Generally, the plaintiff in a medical negligence case has the burden to establish by expert testimony that the physician breached the standard of care and that the breach was the pro ximate cause of the plaintiff’s injury. Ashland Hos p. Corp

. v. Lewis , 581 S.W.3d 572 (Ky. 2019). However, the doctrine of res i ps a loquitur serves as a limited exception where “‘any layman is competent to pass judgment and conclude from common experience that such things do not happen if there has been proper skill and care[.]’” Perkins v. Hausladen , 828 S.W.2d 652, 654

- 55 (Ky. 1992) (quoting in agreement P ROSSER AND K EETON ON T ORTS , § 39 (5 th ed. 1984)).

4 Kentucky Rules of Civil Procedure.- 8

- “Whether expert testimony is required in a giv en case is squarely within the trial court’s discretion.” Green v. Owensboro Med

. Health Sys

. , Inc. , 231 S.W.3d 781, 783 (Ky. App. 2007) (citing Keene v. Commonwealth , 516 S.W.2d 852, 855 (Ky. 1974)). Accordingly, we review for an abuse of discretion.

“ The test for abuse of discretion is whether the trial judge ’ s decision was arbitrary,

u nreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English , 993 S.W.2d 941, 945 (Ky. 1999).

The Estate argues this is a case where a layperson is competent to determine negligence based on the medical records alone. The Estate asserts that the medical records demonstrate that Thomas developed a coccyx wound during his admission, this wound becam e infected in the 39 days following his discharge from Appellees’ care, the infection spread throughout Thomas’s body, and he was still suffering from an infection when he was admitted to the hospital the final time in October 2015.

We note that the Es tate provided no citation to the appellate record to support its assertions regarding the contents of the medical records. Regardless, we agree with the court that the processes involved in the development of a wound during a hospital admission

– especially considering Thomas’s multiple medical
conditions

– and the onset and spread of infection are not within the general knowledge of a layperson. See Nalley v. Banis , 240 S.W.3d 658 (Ky. App. 2007)- 9

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(affir ming the inapplicability of res i ps a loquitur where layp erson could not have determined whether the infection the patient developed after two surgical procedures was caused by defendants’ negligence) and Harmon v. Rust , 420 S.W.2d 563, 564 (Ky. 1967) (affirming summary judgment where expert witness
was not reta ined and layperson was without sufficient general knowledge to recognize that infection after skin transplant and treatment of severe burns is the result of negligence). Accordingly, the court did not abuse its discretion in determining that the doctrine did not apply.

The Estate’s next claim is that the court erred in excluding Dr. Jackson’s testimony. The standard of review for evidentiary issues is abuse of discretion. Clark v. Commonwealth , 223 S.W.3d 90, 95 (Ky. 2007). The trial court’s factual findings “shall not be set aside unless clearly erroneous[.]” CR 52.01; see also A & A Mechanical, Inc., v. Thermal Equip

. Sales, Inc. , 998 S.W.2d 505, 509 (Ky. App. 1999). A finding is not clearly erroneous if it is supported by substantial evidence. Owen s - Corning Fiberglas Corp. v. Golightly , 976 S.W.2d 409, 414 (Ky. 1998).

As an initial point, the Estate posits that , where there is no assertion Dr. Jackson does not qualify as an expert , it is per se erroneous for the court to preclude a jury from he aring his testimony. We disagree. The law has long recognized that the trial judge acts as a gatekeeper regarding the admission of- 10

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expert testimony, a r o le which extends beyond merely ensuring a witness’s qualifications. In Mitchell v. Commonwealth , 908 S.W.2d 100 (Ky. 1995) , overruled on other grounds by Fugate v. Commonwealth , 993 S.W.2d 931 (Ky. 1999) , the Supreme Court of Kentucky adopted the standard of review articulated
in Daubert , 509 U.S. 5 7 9 , 113 S. Ct. 2786, which requires a court to determine whether the testimony is both relevant and reliable

.

Likewise, KRE 702 provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if: (1) The testimony is based upon sufficient facts or data; (2) The testimony is the product of reliable principles and me thods; and (3) The witness has applied the principles and methods reliably to the facts of the case. (Emphasis added

. )

As the law clearly obligates the court to consider the substance of the testimony itself, the Estate’s claim is without merit.

The Estate challenges the court ’s findings that Dr. Jackson’s testimony was not based upon sufficient facts or data

. Specifically, the Estate argues the court erred in accepting without evidence that the medical records from- 11

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the relevant admission were 2, 374 pages

– i nstead of the 150 pages asserted by the
Estate and which Dr. Jackson reviewed

– and that specific skin integrity records
exist which Dr. Jackson did not review . On these matters, we must agree. The only support for these findings in the record c omes from the arguments of the parties , which are not evidence. Chipman v. Commonwealth , 313 S.W.3d 95, 99

- 101 (Ky. 2010).

However, the court’s decision rested on more than these findings and was supported by the record where Dr. Jackson admitted he di d not review relevant portions of the medical records. Further, Dr. Jackson admitted he did not know critical information regarding Appellees’ care of Thomas. While the Estate argues this is because Thomas received no skin integrity care and asserts the medical record contains no relevant information, this is not supported by the record

. Dr. Jackson merely testified he did not know, not that the information was not in the records or that no protective actions were taken by the Appellees.

Relatedly, th e c ourt determined that Dr. Jackson’s testimony regarding breach of standard of care w as not the product of reliable principles and methods where Dr. Jackson made it clear that he did not need to know the specifics of Appellees ’ actions because, in his vie w, skin integrity issues are always preventable , and negligence is presumed if a wound occurs . As the court noted, this is not consistent with Kentucky law which precludes indulging in a- 12

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presumption of negligence based on the mere evidence of a bad result

. Andrew v. Begley , 203 S.W.3d 165, 170

- 71 (Ky. App. 20 06 ) ( citing Meador , 94 S.W.2d at 631). This finding is not clearly erroneous.

Likewise, the court’s finding that Dr. Jackson’s causation opinion was

not the product of reliable principles and methods is supported by the record

. It is well settled that t he reasoning or methodology underlying an expert ’s testimony must be scientifically valid and capable of being properly applied to the facts. Goodyear Tire and Rubber Co

. v. Tho mpson , 11 S.W.3d 575, 581 (Ky. 2000) (citing Daubert , 509 U.S. at 592, 113 S. Ct. at 2796 ; KRE 702 )

. Opinions based on nothing more than an expert’s assertion of fact do not meet this standard. Id.

Herein, Dr. Jackson’s opinion regarding causation ( th at an infection started in the coccyx wound before migrating to the knee and then causing
recurrent infections and contributing to Thomas’s death ) was only supported by his b o ld assertion that he has seen similar cases. Dr. Jackson provided no details regarding these cases or even identified how they were similar . Further, when pressed, Dr. Jackson was not able to articulate a specific basis supporting his opinion, such as infection cultures, nor did he attempt to articulate any general medical basis for his opinion, such as known properties of infections

.

Because the court’s findings ( that Dr. Jackson’s testimony was not based upon sufficient facts or data and that it was not the product of reliable- 13

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principles and methods ) are supported by the reco rd, the court did not abuse its discretion in excluding the testimony

.

Finally , t he Estate contends that the court erred in granting summary judgment. Summary judgment is appropriate if “ there is no genuine issue as to any material fact and

. . . the moving party is entitled to a judgment as a matter of law.” CR 56.03. “The record must be viewed 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. Scanstee l Serv

. Ctr

. , Inc. , 807 S.W.2d 476, 480 (Ky. 1991). However, the party opposing the motion cannot merely rely up on his own claims or arguments but must demonstrate significant evidence to prevail. Wymer v. JH Prop s. , Inc. , 50 S.W.3d 195, 199 (Ky. 2001). We review de novo

. Hallahan v. The Courier

- Journal , 138 S.W.3d 699, 705 (Ky. App. 2004).

Herein, the Estate argues that i t established a genuine issue of material fact through Dr. Jackson’s testimony and regarding its vicarious liability claim

. It further argues the court made a factual error regarding the applicability of an
admission consent form

. Having affirmed the court’s decision to exclude Dr. Jackson’s testimony , as well as its decision that res ip s a loquitur does not apply, it necessarily follows that neither can serve as a basis to preclude summary judgment. Additionally, as vicarious liability requires a negligent agent, i t further follows that summary judgment on the negligence and wrongful death claims- 14

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necessitates summary judgment as to vicarious liability premised on the same facts

. See Cohen v. Alliant Enters

. , Inc. , 60 S.W.3d 536 (Ky. 2001). Thus , this
claim also fails.

As we have affirmed the court’s grant of summary judgment, we need not address the Estate’s claims regarding the court’s rulings on the motions in limine

. Further, as we have determined that the court did not err in its rulings , the Estate’s claim of cumulative error is also without merit

. CONCLUSION Therefore, and for the foregoing reasons, the Fayette Circu it Court’s orders granting summary judgment, denying the applicability of res ip s a loquit u r , and excluding the Estate’s expert are affirmed.

McNEILL , JUDGE, CONCURS. THOMPSON, K., JUDGE, CONCURS IN RESULT ONLY AND FILES SEPARATE OPINION.

THOMPSON, K., JUDGE, CONCURRING IN RESULT : I concur with the well

- written O pinion by the majority , h owever differ as to my analysis to achieve the same result.

Mr. Thomas presented not only a complex prior medical history but also multiple comorbidities concurrent with his hospitalization . He also discharged himself against medical advice from the rehabilitation facility after only three days.- 15

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There is no medical evidence in the record of infection at the site of the bedsore
upon either his discharge from the hospital or from the rehabilitation facility.

But for Mr. Thomas’ s own resistance to treatment, his bedsore could have been treated and the potential for any further injury or resultant infection ameliorated. Further, the developed facts of Mr. Thomas’ s case exhibit no causal
connection between t he occurrence of the bedsore and either his later infection or his death within the realm of reasonable medical probability.

However, and to be clear, with a different factual situation, I believe the incidence o f bedsores, and any further injuries resultant therefrom, could warrant the application of res ip s a loquit u r .

And for those reasons , I concur with the result of the majority.- 16

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BRIEF FOR APPELLANT S : Gerry L. Harris Lexington, Kentucky BRIEF FOR APPELLEE S KENTUCKYONE HEALTH PARTNERS, LLC; KENTUCKYONE HEALTH, INC.; AND SAINT JOSEPH HEALTHCARE , INC

. D/B/A SAINT JOSEPH HEALTH SYSTEM INC. A/K/A SAINT JOSEPH HOSPITAL : Jeffery T. Barnett Kimberly G. DeSimone Lexington, Kentucky
BRIEF FOR APPELLEE JESSE SABIITI, M.D.: Clayton L. Robinson Nick W. Edwards Lexington, Kentucky