Opinion
NO. 2012-CA-001881-MR
01-08-2016
CAROLYN CLAYTON APPELLANT v. PHILIP C. TROVER, M.D. AND BAPTIST HEALTH MADISONVILLE, INC., F/K/A THE TROVER CLINIC FOUNDATION, INC. APPELLEES
BRIEFS FOR APPELLANT: John C. Whitfield Madisonville, Kentucky Roger N. Braden Florence, Kentucky Gary E. Mason Washington, DC BRIEF FOR APPELLEE, BAPTIST HEALTH MADISONVILLE F/K/A THE TROVER CLINIC FOUNDATION, INC.: Donald K. Brown, Jr. Michael B. Dailey Katherine Kerns Vesely Louisville, Kentucky BRIEF FOR APPELLEE, PHILIP C. TROVER, M.D.: Ronald G. Sheffer Sarah E. Potter Louisville, Kentucky J. William Graves Thomas L. Osbourne Paducah, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE MARTIN F. MCDONALD, JUDGE
ACTION NO. 04-CI-00225 & 05-CI-00931 OPINION
AFFIRMING BEFORE: ACREE, CHIEF JUDGE; KRAMER AND TAYLOR, JUDGES. ACREE, CHIEF JUDGE: Appellant, Carolyn Clayton, appeals from the August 18, 2008 and September 16, 2008 orders of the Hopkins Circuit Court dismissing by means of summary judgment her medical negligence and fraud actions against Dr. Philip Trover. Clayton also appeals from orders dismissing by means of summary judgment her medical negligence, negligent credentialing, and fraud actions against Baptist Health Madisonville f/k/a Trover Clinic Foundation. The circuit court determined Clayton did not file her complaint against Dr. Trover and the Foundation within the applicable statute of limitation, and found no evidence of fraud or fraudulent concealment by either Appellee that prevented Clayton from discovering the negligent or otherwise wrongful acts of Dr. Trover or the Foundation. We affirm.
This matter is one of more than four dozen cases appealed to this Court related to Dr. Trover and the Foundation. By means of the Court's prehearing conference procedure, about half of those cases settled prior to briefing. This Court, with the assistance of the parties, divided the remaining twenty-four cases into three main groups, with a few outlying cases.
The principal opinion for the group that includes this case is Brown v. Commonwealth, No. 2012-CA-001880-MR, ----- WL ----- (Ky. App. Jan. 8, 2016), rendered this day. The critical issues in this case are strikingly similarly, essentially identical, to those which have been considered and decided in Brown, supra. So much of that opinion as is dispositive of issues raised on this appeal, except with regard to the claim of medical negligence, is incorporated herein by reference. Unless otherwise noted in this case, for the reasons stated in Brown, the orders of the circuit court are affirmed.
See Brown for an in-depth discussion of the background giving rise to these matters and a listing of the other cases included in this group.
Notably, each Appellant's brief in this category is identical in every respect.
We have carved out and will address separately Clayton's claims related to medical negligence, for this inquiry is fact-specific and turns on the particular circumstances of this case.
In September 2000, Clayton underwent a mammography at Trover Clinic. Dr. Trover interpreted the film on September 11, 2000. He wrote a letter to Clayton reporting her mammogram was normal (no cancer). Four months later, Clayton was diagnosed with breast cancer and underwent a mastectomy. Clayton pursued the claims outlined above as part of a proposed class action lawsuit against Dr. Trover and the Foundation originally filed on March 17, 2004. Clayton joined the proposed class with her own claims as a plaintiff on August 23, 2004.
Eight complaints - the original and seven amendments - were filed in the underlying class action before the individual cases were separated upon denial of class certification. Each complaint added additional party plaintiffs. Clayton was first named as a plaintiff in the third amended complaint tendered on August 24, 2004 and filed on October 15, 2004. (R. at 817-25, 1384; Cruce v. Trover, Hopkins Cir. Ct. Case No. 04-CI-00225). Solely for purposes of this appeal and affording Clayton the benefit of every doubt, we have chosen to use the August 23, 2004 date proffered by Clayton as the date upon which she filed suit.
Following prolonged motion practice, the circuit court dismissed Clayton's medical negligence claim on limitations grounds citing the one-year statute, KRS 413.140, which governs such claims. Clayton appealed. Additional facts and procedural history will be discussed as necessary.
Kentucky Revised Statute.
Like so many of the other appellants in these related cases, Clayton asserts she learned of Dr. Trover's alleged negligence from the March 2004 notice in the Madisonville Messenger and the ensuing media coverage of the story. She claims she had no knowledge of Dr. Trover's negligence until that moment. Clayton argues she filed her complaint well within one year of that date, as required by KRS 413.140 and, therefore, her complaint was timely filed. She asks us to reverse the summary judgment and to allow her claim to proceed.
The advertisement invited residents who had had radiological studies read by Dr. Trover during a certain time period to attend an informational meeting.
Because we believe the circuit court was correct in its ruling, we will affirm for the reasons that follow.
KRS 413.140 establishes a one-year limitations period for actions "against a physician, surgeon, dentist, or hospital licensed pursuant to KRS Chapter 216, for negligence or malpractice." KRS 413.140(1)(e). The determinative moment for measuring the limitations period has always been when the cause of action accrued. Accordingly, the statute further embodies the "discovery rule," meaning that "the cause of action shall be deemed to accrue at the time the injury is first discovered or in the exercise of reasonable care should have been discovered." KRS 413.140(2). Critical to the knowledge element under the discovery rule is the distinction between "harm" and "injury."
"Harm" [is defined] as "the existence of loss or detriment in fact of any kind to a person resulting from any cause." Harm in the context of medical malpractice might be the loss of health following medical treatment. "Injury" on the other hand, is defined as "the invasion of a legally protected interest of another." Thus, injury in the medical malpractice context refers to the actual wrongdoing, or the malpractice itself.Wiseman v. Alliant Hosps., Inc., 37 S.W.3d 709, 712 (Ky. 2000) (citing Restatement (Second) of Torts § 7, comment (1965)).
Armed with the discovery rule, Clayton argues that the one-year statute of limitations did not begin to accrue until the Madisonville Messenger announcement appeared in 2004. That was the date Clayton said she "had any inkling" of Dr. Trover's malpractice. Citing Wiseman, supra, and Imes v. Touma, 784 F.2d 756 (6th Cir. 1986), Clayton argues that this knowledge - knowledge that Dr. Trover's medical negligence caused an injury - was required to trigger the statute of limitations.
Interpreting KRS 413.140(2), our Supreme Court has explained that the limitations period commences when one knows, or in the exercise of reasonable diligence should know, that "(1) he has been wronged; and, (2) by whom the wrong was committed. Wiseman, 37 S.W.3d at 712. However, this formula does not permit a tort victim to sit on her rights. "A person who knows he has been injured has a duty to investigate and discover the identity of the tortfeasor within the statutory time constraints." Queensway Financial Holdings Ltd. v. Cotton & Allen, P.S.C., 237 S.W.3d 141, 151 (Ky. 2007). With that jurisprudence in mind, we examine the facts of Clayton's case more closely.
Clayton testified in deposition to the sequence of events. She had had annual mammograms for 8 to 10 years before cancer was found; in recent years, her mammography had taken place at a medical facility referred to as "MultiCare." (Clayton Depo., pp. 10, 14). But the year 2000 was different.
On May 18, 2000, when she had her annual mammogram at MultiCare, she told her physicians that she had discomfort under her left arm, but the doctors read her mammogram and told her she had no breast cancer. (Id. at 25-29). Nevertheless, she sensed something was not entirely right. (Id. at 29-30). At the urging of her husband, she "[q]uit going to MultiCare and [went] to Trover Clinic." (Id. at 14).
Only four months after her annual MultiCare mammogram, she underwent another mammography at Trover Clinic. As noted above, on September 11, 2000, Dr. Trover read her mammogram as indicating no cancer. He wrote a letter directly to Clayton stating "[h]e was happy to tell [her] that everything was normal, that [her] mammogram was normal." (Id. at 37).
Only four more months passed before she decided to have another mammogram. In January 2001, at the urging of her aunt and sister-in-law, she had her third mammogram in nine months at St. Mary's in Evansville, Indiana. She said, "I felt like it wouldn't hurt to go and get another mammogram. I don't know what made me do it." (Id. at 16). That same day, a biopsy was performed. (Id. at 17). The diagnosis was breast cancer.
She went "right away" to St. Thomas Health in Nashville where, on February 6, 2001, surgeons performed a mastectomy and removed eight lymph nodes, one of which was cancerous. (Id. at 18-20, 33-34).
Her surgery was followed by chemo therapy. "I stayed sick eight months," she said. (Id. at 35). She also said, "I feel like if I had got there [Nashville for surgery] four months earlier, it would not have gotten in that lymph node. Maybe I wouldn't have had to have chemo." (Id. at 34).
Notwithstanding this testimony, Clayton claims that more than three years passed before she suspected Dr. Trover may have misread her mammogram when he diagnosed her as cancer-free a mere four months before her mastectomy in February 2001. She claims she did not know she had been injured or wronged (i.e., that someone had invaded her legally protected interests) until March 2004 when the article in the Madisonville Messenger was released informing the public of allegations against Dr. Trover and the Foundation. Accordingly, she argues, filing in August of that same year would be timely.
The error in her reasoning is that legal confirmation that one has been wronged is not necessary under the discovery rule. Vannoy v. Milum, 171 S.W.3d 745, 748-49 (Ky. App. 2005). The rule merely requires that one be aware of the facts sufficient to put her on notice that her legal rights may have been invaded and by whom; uncertainty about the legal significance of those facts does not toll the limitations period.
Dr. Trover and the Foundation argued before the circuit court, and now before this Court, that the record is sufficient to eliminate all genuine issues of material fact regarding the accrual of Clayton's cause of action and to demonstrate that her claim was not timely filed. We agree.
Clayton's own testimony of her thoughts and actions indicates that even before she went to St. Mary's in Indiana, she doubted the no-cancer diagnoses of two different medical teams (MultiCare and Trover Clinic). Acting on those doubts, she sought and obtained a third mammogram in nine months. That January 2001 mammogram effectively confirmed her doubts; she did have cancer. If the diagnosis was not enough, the surgical removal of her breast should have been.
Our analysis is consistent with Farmers Bank & Trust Co. of Bardstown v. Rice, 674 S.W.2d 510 (Ky. 1984). In Farmers Bank, Dr. Rice failed to diagnose his patient's breast cancer on May 23, 1979. That was the last time Dr. Rice had anything to do with the patient. A different doctor correctly diagnosed breast cancer on September 19, 1979, treated the patient, and the patient's cancer went into remission. Id. at 510-11. The Kentucky Supreme Court found that, beginning September 19, the patient was on notice of the possibility that Dr. Rice negligently diagnosed her; on that date the limitations period began. To succeed, a lawsuit should have been filed not later than September 19, 1980.
Clayton's case mirrors that of Dr. Rice's patient in Farmers Bank. Here, Clayton discovered she had breast cancer in January 2001. Upon discovering the cancer, Clayton had sufficient facts to put her on notice that her legal rights may have been invaded by Dr. Trover. She should have filed her medical negligence claim against Dr. Trover not later than January 2002.
Based on this analysis, we agree with the circuit court that there is no genuine issue of material fact regarding the application of the statute of limitations and Dr. Trover was entitled to judgment as a matter of law.
We are left with Clayton's medical negligence claim against the Foundation. That claim is derivative in nature, based solely on the Foundation's employment of Dr. Trover. "Vicarious liability, sometimes referred to as the doctrine of respondeat superior, is not predicated upon a tortious act of the employer [or principal] but upon the imputation to the employer [or principal] of a tortious act of the employee [or agent.]" Patterson v. Blair, 172 S.W.3d 361, 369 (Ky. 2005) (citation omitted).
Clayton's complaint clearly states that the Foundation's alleged medical negligence is "by and through its agent, Dr. Trover." (R. at 865-66) (emphasis added). --------
Our Supreme Court has held that an employee's "escape [from] liability for his alleged negligence because the statute of limitations had run as to him does not also insulate the employer from vicarious liability for that negligence." Cohen v. Alliant Enterprises, Inc., 60 S.W.3d 536, 538 (Ky. 2001). However, the Court also said the vicarious claim may proceed only if the plaintiff "sued the principal . . . before the statute of limitations had run as to the agent." Id. at 539. In the case before us, Clayton did not sue the Foundation before the statute of limitations had run as to Dr. Trover. Therefore, the medical negligence claim against the Foundation was also untimely.
We affirm the orders of the Hopkins Circuit Court granting summary judgment in favor of Dr. Trover and the Foundation as to Clayton's medical-negligence claims. We likewise affirm all other orders of the Hopkins Circuit Court granting summary judgment in favor of Dr. Trover and the Foundation on Clayton's other causes of action pursuant to the reasoning identified in Brown.
KRAMER, JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN PART AND DISSENTS IN PART.
TAYLOR, JUDGE, concurring in part and dissenting in part. I concur with the majority opinion except as concerns their disposition of the negligent credentialing claim to which I respectfully dissent. I would recognize the tort of negligent credentialing in Kentucky.
In modern medical practice, hospitals have increasingly entered into the arena of hiring and employing physicians covering every facet of medical expertise. These physicians, such as Dr. Trover, are unilaterally selected and granted privileges to practice medicine at the hospital by the hospital. Considering our common-law negligence principles, it is only reasonable and just that hospitals must utilize reasonable care in granting privileges to physicians.
Before this panel are some 24 related appeals involving Dr. Trover and Trover Clinic. In these cases, numerous plaintiffs have alleged that Dr. Trover committed malpractice year after year in the interpretation of radiological studies while a staff physician at Trover Clinic. The sheer magnitude and horrendous nature of Dr. Trover's acts of alleged malpractice while working at Trover Clinic are both inexplicable and disconcerting. These cases underline the reason why the tort of negligent credentialing should be adopted in this Commonwealth. If appellant can demonstrate that Trover Clinic breached its duty by granting privileges to Dr. Trover, who was incompetent, and if appellant can demonstrate harm therefrom, I believe an action for negligent credentialing should be allowed. Accordingly, I would reverse the circuit court's summary judgment dismissing appellant's negligent credentialing claim and remand for further proceedings below. BRIEFS FOR APPELLANT: John C. Whitfield
Madisonville, Kentucky Roger N. Braden
Florence, Kentucky Gary E. Mason
Washington, DC BRIEF FOR APPELLEE, BAPTIST
HEALTH MADISONVILLE F/K/A
THE TROVER CLINIC
FOUNDATION, INC.: Donald K. Brown, Jr.
Michael B. Dailey
Katherine Kerns Vesely
Louisville, Kentucky BRIEF FOR APPELLEE, PHILIP C.
TROVER, M.D.: Ronald G. Sheffer
Sarah E. Potter
Louisville, Kentucky J. William Graves
Thomas L. Osbourne
Paducah, Kentucky