Skoien v. USA

Filing 33

MEMORANDUM OPINION & ORDER: IT IS ORDERED that dft's 23 MOTION for Summary Judgment is GRANTED and Pla's Complaint 1 is DISMISSED WITH PREJUDICE. Separate Judgment shall issue. Signed by Judge Karen K. Caldwell on 2/9/2017.(GLD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT LEXINGTON
TONYA SKOIEN,

CIVIL NO. 5:15-CV-166-KKC

Plaintiff,
V.

MEMORANDUM OPINION AND
ORDER

UNITED STATES OF AMERICA,
Defendant.
*** *** ***
Plaintiff Tonya Skoien filed this medical negligence action under the Federal Tort
Claims Act, (“FTCA”) 28 U.S.C. § 1346(b), 2671 et seq. alleging that she received inadequate
medical care at the Veterans Affairs Medical Center (“VAMC”) in Lexington, Kentucky.
This matter is now before the Court on the United States’ motion for summary
judgment. Because Skoien fails to sufficiently prove the elements of a Kentucky medical
negligence claim, her FTCA claim must fail. Therefore, the United States is entitled to
summary judgment.
I.

BACKGROUND
On June 9, 2013, while helping her fiancé and his family herd cattle, Skoien stepped

into a tractor rut, fell, and injured her left wrist. [DE 19, Page ID # 101, ¶ 4-17]. Skoien
thought she broke her wrist, so she went to the emergency room at the VAMC, where she was
employed. [DE 19, Page ID # 102, ¶ 3–23]. Emergency room doctors determined that her wrist
was broken. Specifically, she was diagnosed with a left distal radius fracture, or Colles’
fracture, [DE 23, Page ID # 668, 692, 907]. She was referred to an orthopedic physician for
consultation and treatment. [DE 24, Page ID # 875]. Several orthopedic surgeons reviewed
the X-rays and confirmed that Skoien had sustained a left distal radius fracture, and placed
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her in a “sugar tong splint.” [DE 24, Page ID # 876]. The splint “opened up on the side for
swelling” but, in her deposition, Skoien testified that “it was really tight.” [DE 19, Page ID
#106, ¶ 5–6, ¶ 16–17]. After the splint was applied and placed in a sling for comfort, an
appointment was then scheduled for the next week. [DE 24, Page ID # 877; DE 23, Page ID #
682]. Skoien was instructed to return to the emergency room if needed. [DE 24, Page ID #
922].
On June 14, 2013, Skoien returned to the VAMC for her follow-up complaining of pain
and tingling in her left forearm. [DE 24, Page ID 895]. Her left wrist also showed signs of
swelling and her fingers were discolored. [DE 24, Page ID # 896]. VAMC physicians took
additional X-rays and determined that her “cap refill [was] good,”—i.e., Skoien had adequate
blood circulation to her hand and fingers. [DE 23, Page ID # 901]. When Skoien complained of
tightness in her splint, her treating physicians scheduled an additional orthopedic
consultation, at which doctors were to evaluate whether or not Skoien’s current “sugar tong
splint” needed re-splinting. [DE 24, Page ID # 902].
Four days later, at her orthopedic consultation, X-rays revealed a “slight interval loss
of reduction” from the setting of the fracture. [DE 24, Page ID # 891]. Treating physician Dr.
Robert Thompson noted that the X-ray findings “[met the] criteria for nonoperative
treatment.” [DE 24, Page ID # 891]. He further explained to Skoien that, if she experienced
any more significant reduction, she could benefit from a surgery to realign the bone fracture.
[DE 24, Page ID # 891]. To address her complaints about the tightness of the splint, Skoien’s
splint was loosened around the thumb. The progress note from that day indicated that the
adjustment resulted in a “significant improvement in [her] pain.” [DE 24, Page ID # 891].
This improvement did not last long. [DE 19, Page ID # 115, at ¶ 5]. Skoien testified in
her deposition that she would “complain to pretty much everyone about the pain and tightness

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of the [splint].”1 [DE 24, Page ID # 717]. On two separate occasions, Skoien sought out Mr.
Standifer, who worked in the orthopedic clinic, to have him make adjustments to the splint.
[DE 24, Page ID # 717]. Mr. Standifer agreed to loosen the splint “to a degree” but made sure
the splint “still [kept] its integrity.” [DE 24-5, Page ID # 940, p. 16, ¶ 9–10]. Though Mr.
Standifer made two slight adjustments to the splint, he refused to remove the splint because
he did not the authority to do so. [DE 24-5, Page ID # 940].
On June 25, 2013, VAMC physicians again “re-loosened” the splint around the thumb
and adjusted the splint to allow for more flexion. [DE 23-2, Page ID # 647]. At her next
appointment, doctors removed the splint and replaced it with a cast. [DE 24-2, Page ID # 883;
DE 19, Page ID # 125, ¶ 12–21].
The cast proved too painful for Skoien. A week later, she returned to the VAMC
complaining of pain and tightness from the cast, which was removed and replaced with a
wristlet splint. [DE 23-2, Page ID # 639]. But even the new splint did not alleviate her pain.
Skoien testified that the next day, thinking that she was “going to lose [her] hand,” she
removed the splint herself and decided to discontinue treatment at the VAMC. [DE 19, Page
ID # 131–132].
On July 11, 2013, Skoien met with Dr. Donald Arms of Central Kentucky Orthopedics
to explore alternative treatment options. At the consultation, Dr. Arms noted that Skoien had
“positive Phalen’s, Tinel’s, median nerve compression testing at the wrist, and she ha[d]
vasomotor and pseudomotor changes that would be characteristic of early complex regional
pain syndrome . . . .” [DE 23-3, Page ID # 695]. According to Dr. Arms, the CRPS was a “second
diagnosis that [was] based on problems with the sympathetic nervous system that controls
pain and sensation and blood supply to the extremity.” [DE 20, Page ID # 225, ¶ 20–25]. Skoien

Skoien’s pleadings state that she complained about her “cast.” However, her deposition, along with the relevant
medical records, states that during this time she was still in a splint. [DE 19, Page ID # 114-115].
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and Dr. Arms then discussed the benefits and risks of operative and nonoperative options for
treatment, which were both “viable options at that point.” [DE 20, Page ID # 255, ¶ 14]. “[A]fter
a long discussion,” Skoien elected to have surgery on her wrist. [DE 23-3, Page ID # 696].
On July 15, 2013, Dr. Arms successfully performed an open carpel tunnel release and
open reduction internal fixation procedure on Skoien. [DE 23-3, Page ID # 697]. Dr. Arms’
surgery notes indicated that “she had developed an early complex regional pain syndrome,
probably due to subacute progressive median nerve compression at the wrist.” [DE 23-3, Page
ID # 697]. However, Dr. Arms did not know whether Skoien exhibited any median nerve
compression and the signs and symptoms of early CRPS before she broke her wrist and had
surgery. [DE 20, Page ID # 228, ¶ 19-23]. After surgery, Dr. Arms diagnosed Skoien with
carpel tunnel syndrome and early malunion of the left distal radius fracture. [Id.]. Skoien was
discharged that day and scheduled for a follow-up appointment for later in the week. [DE 233, Page ID # 699].
In the weeks following the surgery, Skoien’s arm pain continued to plague her, and she
showed little improvement. Skoien met with Dr. Arms again on September 3, 2013, where he
noted that “she’s not responding well.” [DE 23-3, Page ID # 694]. According to Dr. Arms’
progress notes, Skoien still exhibited “significant stiffness, motion loss and hypersensitivity”
related to her diagnosis of “complex regional pain syndrome after fracture.” [Id.]. As part of
his treatment plan, Dr. Arms referred Skoien to Dr. Karim Rasheed, a pain specialist who
worked at Elite Pain Center and St. Joseph Hospital.
Dr. Rasheed first saw Skoien on September 9, 2013, for a consultation. In his
evaluation, Dr. Rasheed noted “clearly the patient has left complex regional pain syndrome1
with left upper extremity, related to her Colles fracture. . . .” [DE 23-5, Page ID # 702]. Skoien
then returned to Central Kentucky Orthopedics for her four- week follow-up, where she met
with Dr. Travis Hunt. Although X-rays revealed Skoien’s wrist fracture to be healed, Dr. Hunt
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referred Skoien to Dr. Ronald Burgess, a hand surgeon, for additional treatment because she
still suffered from recurring stiffness and tightness in the wrist. [DE 23-3, Page ID # 693].
Dr. Ronald Burgess of Commonwealth Orthopedic Surgeons, PSC, met with Skoien on
October 21, 2013. Dr. Burgess noted that Skoien had “significant stiffness of her left wrist and
hand which appear[ed] to have been related to the initial immobilization in full extension and
a painful splint.” [DE 23-6, Page ID # 703]. Skoien and Dr. Burgess discussed Skoien’s
treatment options, including a procedure involving “manipulation of the wrist and all digits
under anesthesia with instill of cortisone into the individual joints after manipulation.” [DE
23-6, Page ID # 704]. Skoien elected to have the procedure, and Dr. Burgess successfully
performed the outpatient procedure on November 5, 2013. [DE 23-6, Page ID # 705]. Skoien’s
last visit with Dr. Burgess was on November 20, 2013, where the two discussed surgical
additional procedures that might increase Skoien’s range of motion in her wrist. Reluctant to
pursue any additional surgical interventions, Skoien refused. Skoien left Dr. Burgess with
plans to continue working with Dr. Rasheed. [DE 23-6, Page ID # 707].
To date, Skoien continues various treatments and therapies with Dr. Rasheed. While
still experiencing chronic upper left extremity pain secondary to CRPS, Skoien has improved,
but, according to Dr. Rasheed, “she’s still not a hundred percent.” [DE 22, p. 29, ¶ 14–15].
On June 4, 2015, Skoien filed a complaint against the United States under the FTCA
alleging “negligence and professional malpractice and misconduct in connection with the
medical care provided to Plaintiff Skoien by the Department of Veterans Affairs at the
Lexington, Kentucky Veterans Affairs Medical Center.” [DE 1]. After the close of discovery on
April 29, 2016, the United States filed a motion for summary judgment [DE 23]. This matter
is now ripe for review.

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II.

DISCUSSION

A. Summary Judgment Standard
To be prevail on a motion for summary judgment, the United States must meet the
standard under Fed. R. Civ. P. 56(a). A motion under Rule 56 challenges the viability of
another party’s claim by asserting that at least one essential element of that claim is not
supported by legally sufficient evidence. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 324–25 (1986). The Court reviews all of the evidence presented by the parties in a
light most favorable to the non-moving party, with the benefit of any reasonable factual
inferences that can be drawn in her favor. Harbin–Bey v. Rutter, 420 F.3d 571, 575 (6th Cir.
2005). As the moving party, the United States does not need its own evidence to support its
assertion, but need only point to the absence of evidence Skoien presents to support her claim.
Turner v. City of Taylor, 412 F.3d 629, 638 (6th Cir. 2005) (citing Celotex, 477 U.S. at 325). If
the United States demonstrates that there is no genuine dispute as to any material fact and
that it is entitled to a judgment as a matter of law, then summary judgment is proper. Kand
Medical, Inc. v. Freund Medical Products, Inc., 963 F.2d 125, 127 (6th Cir. 1992).
In order to survive a motion for summary judgment, Skoien must point to evidence of
record—such as affidavits, depositions, and written discovery—which demonstrates that a
factual question remains for trial. Hunley v. DuPont Auto, 341 F.3d 491, 496 (6th Cir. 2003).
Importantly, the Court is not required to speculate on which portion of the record Skoien
relies, nor is it obligated to “wade through” the record for specific facts that support her claim.
See United States v. WRW Corp., 986 F.2d 138, 143 (6th Cir. 1993) (citing InterRoyal Corp. v.
Sponseller, 889 F.2d 108, 111 (6th Cir.1989), cert. denied 494 U.S. 1091 (1990)).

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B. Skoien’s FTCA Claim
Skoien fails to state a prima facie case of medical malpractice under Kentucky law
because she failed to produce any expert evidence to support her claim that her treatment fell
below the established standard of care.
The liability of the United States under the FTCA is determined in the same manner
and to the same extent as a private individual under similar circumstances. 28 U.S.C. §
1346(b). Because the alleged negligent treatment of Skoien occurred at the VAMC in
Lexington, Kentucky, the law of Kentucky is to be applied in this case. Id.
Under Kentucky law, “a medical malpractice action is merely a ‘branch of [the] well
traveled road [of common law negligence],” Grubbs ex rel. Grubbs v. Barbourville Family
Health Ctr., P.S.C., 120 S.W.3d 682, 693-94 (Ky. 2003), which requires duty, breach,
causation, and damages. Id. at 686. In order to state a prima facie case of medical malpractice,
a plaintiff must introduce evidence, in the form of expert testimony,
demonstrating (1) the standard of care recognized by the medical community as
applicable to the particular defendant, (2) that the defendant departed from
that standard, and (3) that the defendant’s departure was a proximate cause of
the plaintiff’s injuries.
Pardassee v. United States, No. 14-cv-145-JMH, 2015 WL 4491631, at *2 (E.D. Ky. July 23,
2015) (citing Heavrin v. Jones, No. 02–CA–000016–MR, 2003 WL 21673958, at *1 (Ky. Ct.
App. July 18, 2003)) (emphasis added); Reams v. Stutler, 742 S.W.2d 586 (Ky. 1982); Jarboe
v. Harting, 397 S.W.2d 775 (Ky. 1965)). “To survive a motion for summary judgment in a
medical malpractice case in which a medical expert is required, the plaintiff must produce
expert evidence or summary judgment is proper.” Andrew v. Begley, 203 S.W.3d 165,
170 (Ky. Ct. App. 2006) (citing Turner v. Reynolds, 559 S.W.2d 740, 741–42 (Ky. Ct. App.
1977)) (emphasis added); Blankenship v. Collier, 302 S.W.3d 665, 675 (Ky. 2012) (“[A] plaintiff
bringing a typical medical malpractice case is required by law to put forth expert testimony

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to inform the jury of the applicable medical standard of care, any breach of that standard and
the resulting injury.”).
Skoien deposed three doctors, all of whom treated Skoien after she was seen at the
VAMC. However, none of the physicians testified as to standard of care or whether it was
breached. In their depositions, neither Dr. Arms nor Dr. Rasheed even mentioned whether the
care Skoien received fell below a standard of care. [DE 20, DE 22]. In considering both
physicians’ testimony as a whole, nothing could be construed as an opinion as to either the
applicable standard of care much less a breach.
The closest evidence put forth by Skoien comes from Dr. Burgess, the orthopedic hand
surgeon who performed the second procedure on Skoien’s wrist. [DE 23-6, Page ID # 705]. Dr.
Burgess testified at length about CRPS and whether Skoien’s treatment at the VAMC could
have caused or contributed to her condition:
Question:

Can you explain why you felt [the immobilization of the arms and
tight case was a significant contributing factor to Skoien’s
complex regional pain syndrome] within a reasonable medical
probability?

Answer:

Based on the information made to me, there were three events
that occurred in her immediate early fracture care.
One
apparently --according to Dr. Arms’ notes, was an acute
compression of the median nerve with acute carpel tunnel
syndrome. Neurologic compression and pain associated with that
has been associated with an increase incidence of complex regional
pain syndrome.
The second event that occurred, again, this based on the patient’s
report, was that her splint as applied was painful and continued
to be painful and when subsequently changed, there was a sore on
the skin where this -- the cast -- the splint had rubbed sore.
And pain that continues on -- with that pain would have, I think,
pain that increased as time went on rather than decreased as
normal fracture pain would. And change in -- or increasing pain
can also be a contributing factor to the onset of what we now know
as chronic regional pain syndrome.

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The final event, again by patient testimony and not by records, is
that the initial splint extended to the tips of the fingers rather
than to the mid-palm, as is more normal, for an immobilization of
a distal radius fracture.
And prolonged immobilization has also been implicated as a
factor that can increase the incidence of chronic regional pain
syndrome.
. . . And therefore, within medical probability, I feel that they
were significant contributing factors.
[DE 21, Page ID # 313-315]. Dr. Burgess did not testify that the care Skoien received was
below the requisite standard of care:
Question:

And are you testifying or will you be testifying that there was a
specific breach of the standard of care?

Answer:

I do not have medical documentation that would enable me to
state that within medical probability.

[DE 21, Page ID # 309, ¶ 15-20]. And when asked again, he provided the same answer:
Question:

But you are not prepared to form an opinion that there’s been a
breach in the standard of care in this case, as you just testified, I
think?

Answer:

That is correct.

[DE 21, Page ID # 315, ¶ 24-25, Page ID 316, ¶ 1-3]. The sum of Dr. Burgess’ testimony, while
thorough in many respects, does not establish the applicable standard of care or whether
VAMC physicians’ deviated from the proper standard of care in treating Skoien’s Colles’
fracture. In fact, Skoien admits in her pleadings that “[Dr. Burgess] cannot specifically offer
an opinion as to whether there was breach in the standard of care.” [DE 24, Page ID # 727].
Although not required under Rule 56, the United States provided a declaration and
report by Dr. Joseph Dobner, an orthopedist at Rebound Orthopaedics and Sports Medicine

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in Frankfort Kentucky, to support its contention that there was not a breach in the requisite
standard of care. Celotex Corp., 477 U.S. at 325 (“The moving party need not support its
motion with evidence disproving the nonmoving party’s claim, but need only show that there
is an absence of evidence to support the nonmoving party’s case.”). Based on his review of
Skoien’s case, Dr. Dobner stated “[t]hat there is no evidence in the record that the VA deviated
from the standard of care.” [DE 23-7, Page ID # 710].
The record in this case is clear. Skoien has not provided the expert testimony necessary
to support a medical negligence claim under Kentucky law. Skoien’s medical witnesses either
failed to discuss or affirmatively declined to opine as to the applicable standard of care or
whether it was breached.
To avoid dismissal of her medical negligence claim, Skoien argues that she does not
need a medical expert to prove her claim because the VAMC staff’s errors in treating,
splinting, and casting her wrist were so obvious that an ordinary person could infer negligence
from the facts. [DE 24, Page ID # 731]. In so doing, Skoien seeks refuge in the exception to
Kentucky law’s expert testimony requirement, which obviates the need of expert testimony in
cases where negligence can be inferred when it is “so apparent that laymen with a general
knowledge would have no difficulty in recognizing” it. Jarboe, 397 S.W.2d at 778; see also
Muhammad v. United States, No. 08-CV-131-KKC, 2009 WL 3161481, at *5–*6 (E.D. Ky. Sept.
28, 2009) (reviewing the layman exception’s roots in the doctrine of res ipsa loquitur). This
argument fails because Skoien’s own witnesses, medical doctors, could not or would not draw
such an inference.
Moreover, this “layman exception” is very narrow. “Expert testimony is not required
(1) where a layperson is ‘competent to pass judgment and conclude from common experience
that such things do not happen if there has been proper skill and care’ or (2) when the
defendant doctor makes an admission of a technical character from which it could be inferred
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that the doctor acted negligently.” Jones v. Gaes, No. 2009-SC-000780-DG, 2011 WL 1642225,
at *2 (Ky. Apr. 21, 2011) (citing Perkins v. Hausladen, 828 S.W.2d 652, 655 (Ky. 1992)). In
cases where it applies, the doctrine excuses the need to establish a deviation below the
standard of care with expert testimony. Keel v. St. Elizabeth Medical Center, 842 S.W.2d 860,
862 (Ky. 1992). Skoien’s case does not fall within these limited exceptions.
In support of her claim, Skoien cites Perkins v. Hausladen, in which the Kentucky
Supreme Court inferred negligence absent any expert testimony. 828 S.W.2d at 656. There a
defendant surgeon admitted in deposition testimony that his performance in a sigmoid sinus
operation fell below the standard of care. Id. But Skoien does not offer any argument of how
Perkins applies to the present case, she merely recites the legal standard applied in Perkins.
There is no evidence that VAMC staff have ever admitted liability that Skoien’s was below
the standard of care. Thus, the second “layman exception” is inapplicable.
Aside from her citation to Perkins and a reference to the Second Restatement of Torts,
Skoien offers nothing to argue that the first “layman exception” should apply here. In failing
to offer any sort of developed argumentation, Skoien has essentially waived the issue. See
McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997) (“Issues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation, are deemed waived. It is
not sufficient for a party to mention a possible argument in the most skeletal way, leaving the
court to put flesh on its bones.”).
Cases in which courts have allowed common knowledge to infer negligence are, for
example, “where the surgeon leaves a foreign object in the body” or amputates the wrong limb.
Andrew, 203 S.W.3d at 170. Such are cases where it does not take a medical degree and years
of experience to know something negligent occurred. This is not one of those cases. The medical
issues presented in this case demand medical expertise far beyond the purview of a layman.

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The proper method for setting a broken wrist, the decision to intervene surgically or opt for
conservative treatment, the length of time to splint or cast a wrist, and how to diagnose the
cause of and treat symptoms related to pain are all medical questions for which there are no
easy answers. If anything, this case is a prime example of when the first “layman exception”
should not apply. Negligence is never presumed “from the mere evidence of mental pain and
suffering of the patient, or from failure to cure, or poor or bad results, or because of the
appearance of infection.” Andrew, 203 S.W.3d at 170. Skoien’s attempt to shoehorn such a
broad theory into the narrow “layman exception” is unpersuasive. Accordingly, the “layman
exception” to Kentucky’s expert requirement does not apply here.
Skoien’s case is one of understandable frustration. But the FTCA conditions the United
States’ liability for actions or omissions in this case on Kentucky law. Therefore, because
Kentucky law requires that the claims asserted by Skoien be supported by expert testimony
to adequately establish a deviation from the standard of care, and because Skoien has neither
provided such expert testimony nor offered a legally sufficient justification for her failure to
do so, Skoien has failed to make a sufficient showing as to elements that are essential to her
case.2 See Celotex Corp., 477 U.S. at 322. Accordingly, there is “no genuine issue [of] material
fact” as to these elements, and the United States is “entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(c); Andrew, 203 S.W.3d. at 170 (“To survive a motion for summary judgment
in a medical malpractice case in which a medical expert is required, the plaintiff must produce
expert evidence or summary judgment is proper.”).

The Court need not reach the United States’ alternative argument that Skoien failed to prove her treatment at
the VAMC caused her to develop CPRS. Fed. R. Civ. P. 56(a); Celotex Corp., 477 U.S. at 324–25.
2

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III.

CONCLUSION
Accordingly, IT IS ORDERED that the Motion for Summary Judgment filed by

Defendant United States of America [DE 23] is GRANTED, and Plaintiff’s Complaint [DE 1]
is DISMISSED WITH PREJUDICE. A separate judgment shall issue.

Dated February 9, 2017.

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