Opinion
NO. 2012-CA-001885-MR
01-08-2016
MILDRED WELLS 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NOT TO BE PUBLISHED APPEAL FROM HOPKINS CIRCUIT COURT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-00944 OPINION
AFFIRMING BEFORE: ACREE, CHIEF JUDGE; KRAMER AND TAYLOR, JUDGES. ACREE, CHIEF JUDGE: Appellant, Mildred Wells, 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. Wells 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 Wells 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 Wells 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 Wells' claims related to medical negligence, for this inquiry is fact specific and turns on the particular circumstances of this case.
Wells was in a car accident on January 17, 2001. She was admitted to the Regional Medical Center and had numerous x-rays and scans over the course of several hospitalizations from January 2001 throughout April 2001, including a cervical spine x-ray taken on January 17, 2001, and interpreted by Dr. Trover. Despite the x-rays and scans, Wells claims she was not told that she had five broken bones until after an MRI in April 2001. Wells then underwent surgery on her spine at St. Mary's Hospital in Evansville, Indiana, to repair the damage.
A proposed class action lawsuit was filed against Dr. Trover and the Foundation on March 17, 2004. Wells joined the proposed class as a plaintiff on August 4, 2004, alleging Dr. Trover negligently misinterpreted her January 17, 2001, spinal x-ray by failing to diagnose several broken bones resulting in physical, emotional, mental, and psychological pain and suffering.
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. Wells was first named as a plaintiff in the second amended complaint tendered on August 4, 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 Wells the benefit of every doubt, we have chosen to use the August 4, 2004 date proffered by Wells as the date upon which she filed suit.
Following prolonged motion practice, the circuit court dismissed Wells' medical negligence claim, finding she failed to file it within the applicable one-year statute of limitations, KRS 413.140, which governs such claims. Wells appealed.
Kentucky Revised Statute.
Like so many of the other appellants in these related cases, Wells 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. Wells argues she filed her complaint well within one year of March 2004, as required by KRS 413.140 and, therefore, her complaint was timely filed. We are not convinced.
The advertisement invited residents who had had radiological studies read by Dr. Trover during a certain time period to attend an informational meeting.
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, Wells 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 Wells said she "had any inkling" of Dr. Trover's malpractice. Citing Wiseman, supra, and Imes v. Touma, 784 F.2d 756 (6th Cir. 1986), Wells 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 his 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).
Wells maintains that although her harm (i.e., her suffering after a misread spinal x-ray) was known to her as early as April 2001 when an MRI revealed she had multiple broken bones, 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 Dr. Trover and the Foundation's alleged negligence.
The error in her reasoning is not uncommon, but the fact remains 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.
Our decision in this case is further informed by the holding in 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 19th, 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.
Wells' case mirrors that of Dr. Rice's patient in Farmers Bank. Here, Wells discovered she had multiple broken bones, including a fractured neck, in April 2001. Upon discovering the factures and undergoing spinal surgery, Wells had sufficient facts to put her on notice that Dr. Trover may have invaded her legal rights and to start the limitations period on her medical malpractice claim against Dr. Trover.
Summarizing then, beginning not later than April 2001, Wells was on notice of the possibility that Dr. Trover negligently misread her January 2001 spinal x-ray; on that date the limitations period began. To succeed, a lawsuit should have been filed not later than April 2002. Instead, Wells did not file suit until August 4, 2004. Her complaint was not timely filed. The circuit court committed no error in granting summary judgment in favor of Dr. Trover on Wells' claim of medical negligence.
We are left with Wells' 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).
Wells's complaint clearly states that the Foundation's alleged medical negligence is "by and through its agent, Dr. Trover." (R. at 637-38) (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, Wells 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 Wells' 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 Wells'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