Bray et al v. Husted et al

Filing 125

OPINION & ORDER: 1. Defendant John Husted's motion for summary judgment (DE 90 ) against Plaintiff Anna Ruth Bray is DENIED; and 2. Defendant John Husted's motion for summary judgment (DE 91 ) against Plaintiff Lois Boone, as administratrix of the Estate of Jimmie Lowe, is DENIED. Signed by Judge Karen K. Caldwell on 03/31/2014.(KJA)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT LONDON
ANNA RUTH BRAY, and
ESTATE OF JIMMIE LOWE,

CIVIL ACTION NO. 6:11-56-KKC

Plaintiff,
V.

OPINION & ORDER

JOHN HUSTED, M.D. et al.,
Defendants.

*** *** ***
This matter is before the Court on two motions for summary judgment filed by
Defendant John Husted. The two motions are nearly identical and seek dismissal of all
claims brought by Plaintiffs Anna Ruth Bray (DE 90) and Lois Boone, administratrix of the
Estate of Jimmie Lowe (DE 91), on the grounds that their claims are barred by the statute
of limitations. For the following reasons, the Court will deny the defendant’s motions.
Both plaintiffs in this case suffered from lifelong morbid obesity and sought medical
treatment from John Husted, a bariatric surgeon in Somerset, Kentucky. According to the
complaint, Anna Ruth Bray and Jimmie Lowe underwent what is known as a “duodenal
switch” procedure that resulted in severe complications, including life-threatening
malnutrition. After several months of medical treatment following their surgeries, both
Bray and Lowe met Dr. Jeffrey Allen, who performed an exploratory and revisionary
surgery on them to diagnose and correct the problems with Husted’s prior work.
They filed their suit against Husted on February 14, 2011. Husted contends that the
filings were untimely as they were filed more than a year after any reasonable person
would have discovered her injury. He moves for dismissal on such grounds.

I.
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56; Pennington v. State Farm Mut. Auto. Ins. Co., 553 F.3d 447, 450 (6th Cir.
2009). The central issue is “whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). In making its
determination, courts must view all of the evidence in the light most favorable to the party
opposing summary judgment. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
“Where, as in this case, summary judgment [is sought] on statute-of-limitations
grounds,” the Court “must determine whether (1) the statute of limitations has run and (2)
whether there exists a genuine issue of material fact as to when the plaintiff’s cause of
action accrued.” Campbell v. Grand Trunk W. R. Co., 238 F.3d 772, 775 (6th Cir. 2001). If
the court can resolve whether the statute of limitations has expired as a matter of law, it
should. See Elam v. Menzies, 594 F.3d 463, 467 (6th Cir. 2010). “Kentucky law and federal
procedural law used in diversity cases specify that disputed issues of fact respecting the
running of a statute of limitations should be resolved by a jury.” Id.
In this case, both parties agree that the statute of limitations is set by Ky. Rev. Stat.
§ 413.140(1)(e). Under this statute, claims for medical malpractice must be brought within
one year of accrual. This statute adopts a discovery rule, which states 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.” K.R.S. § 413.140(2). Knowledge of the
existence of one’s claim is the statute’s trigger, and it has two facets. “One must know: (1)
2

he has been wronged; and, (2) by whom the wrong has been committed.” Wiseman v. Alliant
Hosps., Inc., 37 S.W.3d 709, 712 (Ky. 2000). Thus, in considering a motion for summary
judgment under this statute of limitations, the Court must decide whether the evidence
construed in the light most favorable to the plaintiffs indicates that Bray and Lowe knew or
should have known they had been injured by Husted more than one year prior to filing suit
on February 14, 2011.
II.
A. Motion for Summary Judgment against Bray
Bray began experiencing difficulties before she left the hospital after her surgery on
May 26, 2009. No one disputes that she immediately suffered from complications: she
required three different corrective surgeries and spent seventeen days in a medicallyinduced coma before ever leaving the hospital. (Linda Daviess Depo., 81-5, 34:7–35:7).
According to the testimony of Bray’s sister-in-law, Husted believed that Bray had a leak
that needed surgical correction. (Daviess Depo., DE 81-5, 32:23–33:1). Because of the
serious complications arising after her surgery, Bray was not discharged until August 20,
2009—nearly three months following the date of her initial procedure. When she was
finally discharged, Bray was in a wheelchair, using a feeding tube, and unable to control
her bowels.
After being discharged, Bray “continu[ed] to go downhill.” (Bray Depo. II, DE 81-9,
119:7–15). She described being sick and nauseated, frequently vomiting, and having to
wear diapers. (Bray Depo. II, DE 83-9, 115:24–116:1–6). Moreover, Bray continued to seek
medical treatment, taking several trips to Southern Kentucky Rehab and the Centennial
Medical Center in Bowling Green. On October 10, 2009, Bray was admitted to Centennial
Medical Center but told that “they would not clean up any more of [Husted’s] messes and
3

they could not touch [Bray], that [she] would have to go elsewhere.” (Bray Depo., DE 81-9,
129:15–20). During this period, Bray testified that she “wouldn’t have went back to
[Husted] for nothing” because she knew something had gone “[h]orribly wrong” with her
surgery. (Bray Depo. II, DE 81-9, 120:21–122:8). She was “scared to go back.” (Bray Depo.
II, DE 81-9, 121:25).
Finally, Bray sought treatment from Dr. Jeffrey Allen in January of 2009. During
December of 2009, she claims she felt like she hit “rock bottom” and that she was “so weak”
that she was “almost nonexistent.” (Bray Depo. II, DE 81-9, 123:21–124:4. She had her first
appointment with Dr. Allen on January 6, 2010. Bray testified that Dr. Allen could not
determine what was wrong without performing an exploratory surgery, but that she was
not healthy enough to undergo the procedure. (Bray Depo. II, DE 81-9, 144:1–10). He then
discharged her to a nursing home to build up her strength for surgery. Bray stayed at the
nursing home for thirty days before being discharged to home while she awaited surgery.
On April 6, 2010, Allen performed an exploratory laparotomy and revision of Bray’s
duodenal switch. After this surgery, Allen informed Bray’s family that Husted had made a
“mess” during her surgery and described how Husted had removed too much of her common
channel. (Bray Depo. II, DE 81-9, 192:2–193:22). Bray was eventually discharged from the
hospital, removed her feeding tube in July of 2010, and starting eating regular foods and
walking short distances.
Under Kentucky law, actions brought “against a physician [or] surgeon . . . for
negligence or malpractice” are subject to a one-year statute of limitations. K.R.S.
§ 413.140(1)(e). 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.” K.R.S.
§ 413.140(2) (emphasis added). The latter of these two provisions is what Kentucky courts
4

refer to as the “discovery rule,” and has been explained by the Kentucky Supreme Court as
follows: “[T]he statute begins to run on the date of the discovery of the injury, or from the
date it should, in the exercise of ordinary care and diligence, have been discovered.”
Wiseman, 37 S.W.3d at 712. Pursuant to Wiseman, “[t]he knowledge necessary to trigger
the statute is two-pronged; one must know: (1) he has been wronged; and, (2) by whom the
wrong has been committed.” Id. Importantly, the Kentucky Supreme Court emphasized
that “[t]his rule entails knowledge that a plaintiff has a basis for a claim before the statute
of limitations begins to run,” and plaintiffs “who possess[ ] no medical knowledge should not
be held responsible for discovering an injury based on the wrongful act of a physician.” Id.
at 712–13.
A crucial aspect of the discovery rule is its reliance on the distinction between “harm”
and “injury.” In Wiseman, the plaintiff underwent a dilatation and curettage (D & C)
procedure. Immediately after the surgery, the plaintiff began experiencing pain in her
coccyx but was informed by the doctor that the surgery could not be the source of the pain.
Over the next several years, the plaintiff continued to experience pain in her coccyx, and
multiple physicians diagnosed her with a broken tailbone. Almost seven years after her
initial D & C, the plaintiff developed a cyst that ultimately required surgery. During this
surgery, the doctor “discovered a piece of a metal medical instrument, approximately three
to four centimeters in length, located one-half inch to three-quarters inch under the surface
of the skin.” Wiseman, 37 S.W.3d at 711. It was later determined that this piece of metal
was mistakenly left inside of the plaintiff during her D & C in 1989. Id.
The Kentucky Supreme Court in Wiseman rejected the argument that her claim—
brought seven years after the initial surgery—was barred by the statute of limitations. The
Court explained that although the plaintiff experienced harm immediately after her first
5

surgery, this “discovery of harm” was insufficient to start the limitations period. “Harm in
the context of medical malpractice might be the loss of health following medical treatment,”
and “could result from a successful operation where a communicated, calculated risk simply
turns out poorly for the patient, although the medical treatment met the highest medical
standards.” Wiseman, 37 S.W.3d at 712. Injury, on the other hand, is the “invasion of any
legally protected interest of another,” and in the context of medical malpractice “refers to
the actual wrongdoing, or the malpractice itself.” Id. (emphasis added) (internal quotations
omitted). Thus, although the plaintiff in Wiseman discovered her harm almost immediately,
she could not have discovered her injury until the metal instrument was located inside of
her.
Several courts have further elaborated on the distinction described in Wiseman in order
to determine when a plaintiff’s cause of action for medical malpractice begins to accrue. In
Vannoy v. Milum, 171 S.W.3d 745 (Ky. Ct. App. 2005), the Kentucky Court of Appeals
explained that knowledge of one’s injury is not determined by whether the plaintiff knows
her claim is actionable. Id. at 748–49. Thus, when a plaintiff was informed by other
physicians that his injury was attributable at least in part to his doctor’s antibiotic
treatment, that knowledge was sufficient to start the statute of limitations period even
though the plaintiff did not know that the doctor’s specific act of negligence was a failure to
prescribe the right dosage and properly monitor the plaintiff. See id. at 750.
Other cases within the Kentucky courts have offered less clarity. In Welch v. Edds, 2005
WL 3244339, Case No. 2004-CA-002255-MR (Ky. Ct. App. Dec. 2, 2005) (unpublished), the
Kentucky Court of Appeals held that “[t]he discovery rule [ ] generally does not require
expert confirmation that one has been wronged.” Id. at *2. But the court was unclear as to
what facts outside of expert confirmation might move the plaintiff from having only notice
6

of harm to notice of the “malpractice itself,” which is required under Wiseman. In Collins v.
Jorjani, 2004 WL 1909407, Case No. 2003-CA-001227-MR (Ky. Ct. App. Aug. 27 2004)
(unpublished), the court found the plaintiff to have sufficient knowledge under the
discovery rule because his injury was “readily apparent.” Id. at *4. The plaintiff in Collins
did not have an actual diagnosis to make him aware of his injury, but when seeking
treatment from other physicians they informed him that his leg was not healing properly.
Id. (“The doctors Collins consulted subsequent to Dr. Jorjani confirmed that his leg was not
healing properly[.]”). Thus, while the Collins plaintiff did not have “expert confirmation” of
malpractice through a specific diagnosis, he did have something more than an
unsubstantiated experience of harm that would be otherwise insufficient. See Wiseman, 37
S.W.3d at 712–13 (“One who possesses no medical knowledge should not be held
responsible for discovering an injury based on the wrongful act of a physician.”).
In the instant case, whether Bray should be charged with knowledge of her injury is not
easily discernible through examination of this case law. On the one hand, Bray has testified
that she immediately believed that something had gone “horribly wrong” with her surgery.
She had been informed she would leave the hospital the day following her surgery, but
instead stayed for almost three months during which she underwent three additional
surgeries and spent seventeen days in a medically-induced coma. When she finally left the
hospital in August, Bray was in a wheelchair, on a feeding tube, and requiring diapers. By
December, she had been informed by the Centennial Medical Center that they would not
treat her because they would not be cleaning up any more of Husted’s messes, and she
described her situation as having hit rock bottom. She testified, without qualification, that
she believed Husted did something wrong during the surgery.

7

That being said, when Bray finally met with Dr. Allen, he informed her that he could
not determine what was wrong without performing an exploratory surgery. Although Allen
might have believed her condition was due to Husted’s procedure, he could not know the
actual cause of her harm without performing an exploratory surgery. Moreover, none of the
medical providers examining Bray between her discharge from Husted’s care and her
surgery with Dr. Allen informed Bray as to what the cause of harm was. This was despite
persistent diligence on the part of Bray in attempting to discover what had happened. Bray
contends that this makes her case like that in Wiseman: although she experienced harm
immediately following her surgery, it was not until the following April that she discovered
her actual injury.
Ultimately, this Court finds that whether Bray had the requisite knowledge under the
discovery rule is a fact issue best reserved for trial. On a motion for summary judgment,
this Court must construe all facts in a light most favorable to the non-moving party. There
is no doubt that Bray experienced immense harm following her surgery, and believed that
the harm had been caused by Husted during a surgery gone wrong. And unlike Wiseman,
Bray’s belief that Husted harmed her was never dislodged by a second physician’s
misdiagnosis. However, in seeking subsequent medical treatment, no other medical
provider informed her as to what—if anything—went wrong with her surgery. According to
the testimony, Dr. Allen informed her that he needed to perform an exploratory surgery in
order to discover the cause of her harm. These facts ultimately give reasonable grounds to
dispute the point in time that Bray knew or should have known she suffered an injury,
rather than just the harmful consequences of an invasive medical procedure.
As explained in a related case, Burton v. Lake Cumberland Reg. Hosp., LLC, Civil No.
11-317 (E.D. Ky.), the facts of Vannoy v. Milum are illustrative. The Kentucky Court of
8

Appeals ultimately found in Vannoy that the plaintiff knew he had been injured and by
whom before he knew he had an actionable claim for negligence. Vannoy, 171 S.W.3d at
750. Although Husted would contend that the case is similar to Bray’s—that she knew she
had been injured prior to Dr. Allen discovering the specific act of negligence—Vannoy is
distinguishable in a crucial way. The plaintiff in Vannoy knew he had been injured and by
whom only “upon obtaining his [medical] records,” which attributed his harm in part to his
gentamicin therapy. Id. at 749–50. In contrast, Bray sought medical treatment from a
number of providers following her surgery and it was not until April 6, 2010, that her
medical records attributed her harm to specific conduct by Husted. This distinction
demonstrates why the fact of knowledge is in dispute in the present case: unlike Vannoy, it
is not abundantly clear whether Bray “had in [her] hands all relevant facts” necessary to
constitute knowledge of her injury.
As the Kentucky Court of Appeals has stated, “where ‘there is a factual issue upon
which the application of the statute [of limitations] depends, it is proper to submit the
question to the jury.’ As such, we note that it is not within the province of this [C]ourt to
determine whether [the plaintiff] knew or should have known that he was” injured by
Husted’s malpractice. Van Landingham v. Georgia-Pac. Corp., 2009 WL 2475258, *3, Case
No. 2007-CA-002601-MR (Ky. Ct. App. Aug. 14, 2009) (unpublished). “Rather, a material
issue of fact exists as to [her] knowledge or lack thereof, and such a determination is within
the particular province of the jury.” Id. In this case, whether Bray knew or should have
known is a factual question, and the Court will therefore deny Husted’s motion.
B. Motion for Summary Judgment against Lowe
The facts for Plaintiff Jimmie Lowe resemble that of Bray’s with a few differences. Like
Bray, Lowe sought medical treatment in 2009, undergoing her bariatric surgery on June 11,
9

2009. But unlike Bray, Lowe did not suffer from the same immediate difficulties. She was
discharged from the hospital within only a few days. Once home, however, it became
apparent that something was wrong. According to testimony of her mother-in-law Lois
Boone, who brings the present action as the administratrix of Lowe’s estate, Lowe was
unable to eat or drink without vomiting or having diarrhea. (Boone Depo., DE 83-5, 35:6–8).
When asked whether “you could tell that something was not right virtually from the day
she came home from the hospital,” Boone said, “Yeah.” (Boone Depo., DE 83-5, 58:9–12).
She also experienced respiratory difficulties for which she sought treatment at the Lake
Cumberland Regional Hospital emergency room. During part of this period following the
surgery, Lowe remained under the care of Husted. He performed a corrective surgery on
Lowe after she developed a leak. The surgery was performed on July 24, 2009 and Lowe
was discharged on August 1.
Brenda Overby, a friend and neighbor of Lowe’s, testified in her deposition that when
Lowe came home after her surgery Lowe told Overby she regretted her surgery and
believed that Husted had lied to her. (Overby Depo., DE 83-10, 14:19–15:7). When asked
whether Lowe told her this “within a matter of days or weeks after she got home,” Overby
said, “Probably within a month.” (Overby Depo., DE 83-10, 15:3–5).
In October 2009, Lowe’s condition deteriorated again and she was admitted to Saint
Joseph London Hospital. (Boone Depo., DE 83-5, 44:5–45:6, 46:4–5). She stayed there for
approximately a month where her condition continued to worsen, but nobody was able to
determine what was wrong. (Boone Depo., 83-5, 45:7–10). While at Saint Joseph’s, Lowe
was told by the doctors that she “needed to find a weight loss doctor.” (Boone Depo., 83-5,
47:10). Near the end of October, the family got in touch with Husted and was transferred
back to Lake Cumberland under his care. (Boone Depo., 83-5, 48:16–49:6). Lowe was
10

discharged from Lake Cumberland on December 4, and at this point Boone testified that it
was apparent that “[s]omething was really wrong.” (Boone Depo., 83-5, 61:16–20).
Lowe continued to seek medical treatment throughout December. She first went to Oak
Tree Hospital where she was under the care of Dr. Steve Morton. (Boone Depo., 83-5, 54:5–
10). Then, at the end of December, Lowe was transferred to Baptist Regional Rehabilitation
Center, where she stayed for approximately one month. (Boone Depo., 83-5, 55:25–56:14).
Eventually, Lowe ended up just like Bray in the care of Dr. Allen, who admitted Lowe to
Norton Suburban Hospital in April of 2010. After spending approximately six weeks in the
hospital building up her strength, Allen performed the same exploratory surgery on May
11, 2010, where he discovered the same problem he found with Bray’s surgery. (Boone
Depo., 83-5, 64:20–65:16).
Importantly, and as was the case with Bray, the testimony indicates that Dr. Allen did
not know—and could not know—what was wrong with Bray prior to the exploratory
surgery. During her deposition, Boone was asked whether Dr. Allen told her “what he
intended to -- to do in the surgery.” (Boone Depo., 83-5, 65:6–7). She responded that “[h]e
told me he wouldn’t really know till he got in there to see what’s going on.” (Boone Depo.,
83-5, 65:8–9). Following the surgery, however, Dr. Allen “told [Boone] her stomach or
whatever part you take out was shortened.” (Boone Depo., DE 83-5, 65:14–15).
The analysis here mirrors that applied to Bray. Just as with Bray, Lowe experienced
difficulties soon after being discharged from the care of Husted. And just as with Bray,
deposition testimony indicates that Lowe believed the surgery had gone wrong. But just as
with Bray, Lowe was unable to determine how Husted committed malpractice until her
exploratory surgery with Dr. Allen. Although she was diligent in seeking out answers, no
medical provider was able to provide them until May of 2010. Not even Dr. Allen could
11

determine what was causing her harm without performing an exploratory surgery. Thus,
although Lowe might have believed that Husted harmed her, when drawing all reasonable
inferences from the evidence in favor of her, it is not clear that she had sufficient knowledge
to satisfy Kentucky’s discovery rule. As with the analysis above, when “a material issue of
fact exists as to [her] knowledge or lack thereof, [ ] such a determination is within the
particular province of the jury.” Van Landingham, 2009 WL 2475258 at *3. For these
reasons and the reasons explained above with reference to Bray, the Court will deny
Husted’s motion for summary judgment on the grounds that there is a genuine dispute over
when Lowe knew or should have known she had been injured by Husted.
***
Accordingly, and for all of the reasons stated above, IT IS ORDERED that:
1. Defendant John Husted’s motion for summary judgment (DE 90) against Plaintiff
Anna Ruth Bray is DENIED; and
2. Defendant John Husted’s motion for summary judgment (DE 91) against Plaintiff
Lois Boone, as administratrix of the Estate of Jimmie Lowe, is DENIED.
Dated this 31st day of March, 2014.

12